Opinion
1306 KA 17–01376
12-20-2019
The PEOPLE of the State of New York, Respondent, v. James WHITFIELD, Defendant–Appellant.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the third degree ( Penal Law §§ 110.00, 140.20 ), defendant contends that his plea was not knowingly, intelligently, or voluntarily entered. We affirm. Although that contention survives the waiver of the right to appeal (see People v. Reinard, 134 A.D.3d 1407, 1408, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied ––– US ––––, 137 S Ct 392, 196 L.Ed.2d 308 [2016] ; People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ), defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Morrow, 167 A.D.3d 1516, 1517, 90 N.Y.S.3d 436 [4th Dept. 2018], lv. denied 33 N.Y.3d 951, 100 N.Y.S.3d 154, 123 N.E.3d 813 [2019] ; People v. Sheppard, 149 A.D.3d 1569, 1569, 53 N.Y.S.3d 443 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). Furthermore, this case does not fall within the rare exception to the preservation doctrine inasmuch as nothing in the plea colloquy "casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see Sheppard, 149 A.D.3d at 1569, 53 N.Y.S.3d 443 ).