People v. Martinez–velazquez

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered October 24, 2008, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Defendant was charged in an indictment with robbery in the first degree and grand larceny in the fourth degree, stemming

from his involvement in the robbery of a restaurant. Defendant pleaded guilty to the reduced charge of robbery in the second degree in full satisfaction of the indictment and waived his right to appeal. County Court thereafter sentenced defendant to six years in prison, to be followed by five years of postrelease supervision. Defendant now appeals.

Initially, contrary to defendant's contention, his waiver of the right to appeal was valid as the transcript of the plea colloquy and the counseled written waiver entered by defendant in open court demonstrate that he voluntarily, knowingly and intelligently waived his right to appeal ( see People v. Pendelton, 81 A.D.3d 1037, 1037, 916 N.Y.S.2d 297 [2011], lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011]; People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ). Defendant's claim that his plea was not voluntarily, knowingly and intelligently entered, which survives his waiver of the right to appeal, is not preserved for our review in light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Wicks, 83 A.D.3d 1223, 1224, 920 N.Y.S.2d 488 [2011], lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011]; People v. Jean–Francois, 82 A.D.3d 1366, 1366–1367, 918 N.Y.S.2d 389 [2011], lv. denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ). Furthermore, the narrow exception to the preservation rule is inapplicable here in that the record reflects that defendant did not make any statements during the allocution that cast doubt on his guilt or negated an essential element of the crime ( see People v. McFarren, 83 A.D.3d 1209, 1209, 921 N.Y.S.2d 391 [2011], lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 26, 956 N.E.2d 807 [2011]; People v. Campbell, 81 A.D.3d 1184, 1185, 917 N.Y.S.2d 419 [2011] ). To the extent that defendant claims that his recitation of the facts did not establish the element of force required by the crime of robbery in the second degree ( see Penal Law § 160.10), we note that the exception to the preservation rule applies only where a recitation of facts casts significant doubt on a defendant's guilt and not, as here, where “the sufficiency of the articulation of the element is challenged” ( People v. Vonderchek, 245 A.D.2d 979, 980, 667 N.Y.S.2d 129 [1997], lv. denied 91 N.Y.2d 945, 671 N.Y.S.2d 725, 694 N.E.2d 894 [1998]; accord People v. Seeber, 12 A.D.3d 950, 950, 785 N.Y.S.2d 196 [2004], lv. denied 4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94 [2005] ).

ORDERED that the judgment is affirmed.

SPAIN, J.P., KAVANAGH, STEIN and GARRY, JJ., concur.