LAND, KENNETH, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
911
KA 15-01097
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KENNETH LAND, DEFENDANT-APPELLANT.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered April 8, 2015. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.
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 first degree (Penal Law § 160.15
[2]), defendant contends that County Court erred in accepting his plea
of guilty without making further inquiry to ensure that the plea was
knowing and voluntary. That contention, which arises out of
defendant’s assertions to the presentence investigator that he was not
involved in the crime and defendant’s protestations of the unjustness
of his conviction to the court at sentencing, amounts to a challenge
to the factual sufficiency of the plea allocution (see People v Arney,
120 AD3d 949, 950; see generally People v Hicks, 128 AD3d 1358, 1359,
lv denied 27 NY3d 999). Defendant’s challenge is encompassed by the
valid waiver of the right to appeal (see People v McCrea, 140 AD3d
1655, 1655), and it is not preserved for our review inasmuch as
defendant did not move to withdraw the plea or to vacate the judgment
of conviction (see People v Rinker, 141 AD3d 1177; see generally
People v Lopez, 71 NY2d 662, 665). This case does not fall within the
narrow exception to the preservation requirement articulated in Lopez
(see id. at 666; People v Brinson, 130 AD3d 1493, 1493, lv denied 26
NY3d 965), but we in any event note that, although not required to do
so, the court conducted an inquiry into the validity of the plea based
on the statements made by defendant during his presentence interview
and at sentencing (see generally People v Garcia-Cruz, 138 AD3d 1414,
1415, lv denied 28 NY3d 929).
Contrary to defendant’s further contention, the sentence is not
illegal, and the valid waiver of the right to appeal encompasses the
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KA 15-01097
contention that the sentence is unduly harsh and severe (see generally
People v Lopez, 6 NY3d 248, 255).
Entered: November 10, 2016 Frances E. Cafarell
Clerk of the Court