GILL, ROBERT G., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
586
KA 12-01912
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT G. GILL, DEFENDANT-APPELLANT.
CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered August 2, 2012. The judgment convicted
defendant, upon his plea of guilty, of assault 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 his plea of guilty of assault in the second degree (Penal Law
§ 120.05 [1]). Contrary to defendant’s contention, he knowingly,
voluntarily, and intelligently waived his right to appeal (see People
v Fontaine, 144 AD3d 1658, 1658). Although defendant’s contention
that his guilty plea was not knowing, voluntary, and intelligent
survives the valid waiver of the right to appeal, defendant failed to
preserve that contention for our review inasmuch as he failed to move
to withdraw the plea or to vacate the judgment of conviction (see
People v Bizardi, 130 AD3d 1492, 1492, lv denied 27 NY3d 992). This
case does not fall within the rare exception to the preservation rule
set forth in People v Lopez (71 NY2d 662, 666), “inasmuch as nothing
in the plea colloquy casts significant doubt on defendant’s guilt or
the voluntariness of the plea” (People v Lewandowski, 82 AD3d 1602,
1602; see Lopez, 71 NY2d at 666; Bizardi, 130 AD3d at 1492).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court