Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Armando R. TORRES, Also Known as “Mondo,” Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[3] ). We reject defendant's contention that County Court abused its discretion in denying his motion to withdraw his plea without a hearing ( see People v. Merritt, 115 A.D.3d 1250, 1250–1251, 982 N.Y.S.2d 276;see generally People v. Mitchell, 21 N.Y.3d 964, 966, 970 N.Y.S.2d 919, 993 N.E.2d 405). Defendant's belated and unsupported claims of innocence and coercion were insufficient to justify a hearing ( see People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523,lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053). We reject defendant's further contention that his plea was jurisdictionally defective. Defendant pleaded guilty to the crime charged in the indictment ( cf. People v. Castillo, 8 N.Y.3d 959, 960–961, 836 N.Y.S.2d 505, 868 N.E.2d 185) and, by his guilty plea, defendant forfeited any challenge to the alleged amendment of the indictment ( see People v. Martinez, 52 A.D.3d 68, 71, 855 N.Y.S.2d 522,lv. denied11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103). Defendant's valid waiver of the right to appeal precludes review of the factual sufficiency of the plea allocution and forecloses defendant's challenge to the severity of his sentence ( see People v. Talley, 112 A.D.3d 1347, 1347, 977 N.Y.S.2d 526;People v. Nash, 38 A.D.3d 684, 684, 832 N.Y.S.2d 593,lv. denied9 N.Y.3d 848, 840 N.Y.S.2d 775, 872 N.E.2d 888). While defendant's contention that his plea was not voluntary survives the waiver of the right to appeal and was preserved by his motion to withdraw his plea, we conclude that the contention is without merit inasmuch as it is belied by the record ( see Merritt, 115 A.D.3d at 1251, 982 N.Y.S.2d 276).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.