HOUGH, SR., RONALD, PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
337
KA 15-01852
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RONALD HOUGH, SR., DEFENDANT-APPELLANT.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered March 19, 2015. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of attempted robbery in the first degree
(Penal Law §§ 110.00, 160.15 [2]). Defendant’s contention that County
Court erred in accepting his “involuntary and illegal” plea is not
preserved for our review inasmuch as defendant did not move to
withdraw his plea of guilty or to vacate the judgment of conviction
(see People v Lugg, 108 AD3d 1074, 1075; People v Burney, 93 AD3d
1334, 1334; see generally People v Pastor, 28 NY3d 1089, 1090-1091).
Moreover, because nothing in the record of the proceedings before the
court calls into question the voluntariness of defendant’s plea or
casts significant doubt upon his guilt, this case does not fall within
the exception to the preservation requirement (see People v Lopez, 71
NY2d 662, 666; People v Mobley, 118 AD3d 1336, 1337, lv denied 24 NY3d
1121). There is no merit to defendant’s contention that the sentence
is illegal (see Penal Law § 70.06 [6] [b]). Finally, even assuming,
arguendo, that defendant’s waiver of the right to appeal was invalid
and thus does not preclude our review of his challenge to the severity
of the sentence (see People v Davis, 114 AD3d 1166, 1167, lv denied 23
NY3d 1035; People v Theall, 109 AD3d 1107, 1108, lv denied 22 NY3d
1159), we nevertheless conclude that the sentence is not unduly harsh
or severe.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court