2017 NY Slip Op 06107


Appellate Division of the Supreme Court of New York, Third Department.

Attorney(s) appearing for the Case

Linda B. Johnson , East Greenbush, for appellant.

Stephen K. Cornwell, Jr. , District Attorney, Binghamton ( Torrance L. Schmitz of counsel), for respondent.

Before: Peters, P.J., Rose, Mulvey, Aarons and Pritzker, JJ.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 25, 2014, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.



In satisfaction of a three-count indictment, defendant pleaded guilty to robbery in the second degree. County Court denied defendant's application for a "violent felony override," a document referred to in 7 NYCRR 1900.4 (c) (1) (iii), and sentenced defendant as a second felony offender to a prison term of seven years, followed by five years of postrelease supervision, pursuant to a plea agreement that also included a waiver of appeal. Defendant now appeals.

We affirm. Initially, the People correctly concede that defendant did not waive his right to appeal his conviction and sentence, as the record reveals that County Court failed to engage in any discussion with defendant as to the agreed-upon waiver during the plea allocution (see People v Bradshaw, 18 N.Y.3d 257, 264-265 [2011]; People v Callahan, 80 N.Y.2d 273, 283 [1992]). As to the merits, defendant contends that his guilty plea was not knowing, voluntary and intelligent. Such contention was not preserved for our review inasmuch as the record does not reflect that defendant made an appropriate postallocution motion to withdraw his guilty plea (see People v Millard, 147 A.D.3d 1155, 1156 [2017], lv denied 29 N.Y.3d 999 [2017]; People v Laflower, 145 A.D.3d 1341, 1342 [2016]). Furthermore, we are not persuaded by defendant's argument that his statements during the plea allocution cast doubt upon his guilt or upon the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v Franklin, 146 A.D.3d 1082, 1084 [2017], lvs denied 29 N.Y.3d 946, 948 [2017]; People v Darrell, 145 A.D.3d 1316, 1317 [2016]). Rather, the record establishes that defendant was advised of and understood the charge against him and the consequences of a guilty plea, had conferred with counsel before entering his plea and unequivocally admitted that he committed the conduct constituting the crime charged and that he was pleading guilty because he was, in fact, guilty (see People v Griffith, 136 A.D.3d 1114, 1115 [2016], lv denied 28 N.Y.3d 1184 [2017]; People v Barnes, 119 A.D.3d 1290, 1291 [2014], lv denied 25 N.Y.3d 987 [2015]; People v Bethel, 69 A.D.3d 1126, 1127 [2010]). Finally, we reject defendant's further contention that County Court erred in denying his request for a violent felony override, as the issuance thereof is not provided for under any regulations or statutes, and County Court complied with the requirements of 7 NYCRR 1900.4 (c) (1) (iii) by issuing the sentence and commitment that properly specifies that defendant pleaded guilty to robbery in the second degree under Penal Law § 160.10 (1), the section under which defendant was convicted (see People v Ellis, 123 A.D.3d 1054, 1054 [2014], lv denied 25 N.Y.3d 989 [2015]; People v Nelson, 121 A.D.3d 719, 720 [2014]; People v Lynch, 121 A.D.3d 717, 718-719 [2014], lv denied 24 N.Y.3d 1086 [2014]).

Peters, P.J., Rose, Aarons and Pritzker, JJ., concur.

ORDERED that the judgment is affirmed.


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