KELLY, CHRISTOPHER J., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
824
KA 15-00812
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CHRISTOPHER J. KELLY, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered November 23, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted murder in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a guilty plea of attempted murder in the second degree (Penal Law
§§ 110.00, 125.25 [1]). Defendant failed to move to withdraw his plea
or to vacate the judgment of conviction and thus failed to preserve
for our review his contention that his plea was coerced because County
Court threatened to impose a greater sentence in the event of a
conviction following trial (see People v Lando, 61 AD3d 1389, 1389, lv
denied 13 NY3d 746). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]). Defendant also failed to preserve his contention
that his plea was coerced by the court’s denial of his request for
public funds and an adjournment to retain a psychiatric expert (see
generally People v Lesame, 239 AD2d 801, 802, lv denied 90 NY2d 941).
In any event, we conclude that defendant’s contention is belied by the
record and without merit (see People v Hall, 82 AD3d 1619, 1619-1620,
lv denied 16 NY3d 895).
To the extent that defendant contends that he was denied the
right to present a defense by an alleged denial of public funds to
retain an expert, we conclude that, by pleading guilty, defendant
forfeited the right to challenge any such denial (see People v McGuay,
120 AD3d 1566, 1567, lv denied 25 NY3d 1167). We further conclude
that defendant waived his right to appellate review of this issue
because defense counsel “withdrew [the application] ‘before the court
rendered its decision’ ” (People v Hazzard, 129 AD3d 1598, 1600, lv
-2- 824
KA 15-00812
denied 26 NY3d 968; see People v King, 115 AD3d 986, 987, lv denied 23
NY3d 1064).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court