Opinion
March 24, 1994
Appeal from the Supreme Court, Bronx County (Martin Marcus, J.).
Defendant's contention that his allocution to two of the four first degree robbery charges to which he pleaded guilty stated that while he displayed what appeared to be a pistol he did not have a gun, and that the court erred in failing to inquire whether he understood that he had thereby raised an affirmative defense, is unpreserved for review as a matter of law, defendant never having moved to withdraw his plea or to vacate the judgment of conviction (People v. Campo, 196 A.D.2d 720). Nor does the case fit within the narrow exception to the preservation doctrine set forth in People v. Lopez ( 71 N.Y.2d 662, 666), since defendant's statements that he placed his hand in his pocket while demanding the money from one victim, and placed an object against another victim's head while demanding money, "did not negate an element of the crimes to which he pleaded guilty but actually were admissions of the element `[d]isplay[ed] what appear[ed] to be a pistol [or] revolver'" (People v. Willingham, 194 A.D.2d 703, lv denied 82 N.Y.2d 729). In any event, were we to reach the issue in the interest of justice, we would find that the plea was knowing and voluntary (People v. Frascone, 176 A.D.2d 128).
Concur — Murphy, P.J., Sullivan, Rosenberger, Asch and Tom, JJ.