Opinion
689 KA 14-00477
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Eddie D. WILLIAMS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, 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 robbery in the third degree ( Penal Law § 160.05 ), defendant contends that his plea was not knowingly, intelligently, and voluntarily entered because Supreme Court failed to advise him of all the constitutional rights he would be forfeiting upon pleading guilty (see generally Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ). Defendant failed to preserve that contention for our review, however, inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Johnson , 52 A.D.3d 1286, 1286, 859 N.Y.S.2d 539 [4th Dept. 2008], lv denied 11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660 [2008] ). Contrary to defendant's contention, the narrow exception to the preservation requirement does not apply under the circumstances of this case (cf. People v. Tyrell , 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; see generally People v. Conceicao , 26 N.Y.3d 375, 381-382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). Although the Court of Appeals in Tyrell vacated a guilty plea based on an unpreserved Boykin claim, the defendant in that case was sentenced immediately following his plea and thus did not have an opportunity to move to withdraw his plea (see Tyrell , 22 N.Y.3d at 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; see also Conceicao , 26 N.Y.3d at 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 ). Here, in contrast, defendant was sentenced more than one month after he entered his guilty plea, thus affording him ample time to bring a motion (see People v. Landry , 132 A.D.3d 1351, 1352, 17 N.Y.S.3d 533 [4th Dept. 2015], lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ).