Opinion
10-07-2015
The PEOPLE, etc., respondent, v. Hokeel Hoe BAILEY, appellant.
Seymour W. James, Jr., New York, N.Y. (Joanne Legano Ross of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Joanne Legano Ross of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Camacho, J.), rendered October 17, 2011, convicting him of robbery in the second degree and resisting arrest, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant's contention that his plea of guilty was not knowingly or voluntarily entered is not preserved for appellate review because he did not move to vacate his plea or otherwise raise the issue before the Supreme Court (see CPL 470.05[2] ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; People v. Folger, 110 A.D.3d 736, 971 N.Y.S.2d 890 ). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here, as the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). In any event, the record of the plea proceedings reflects that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Harris, 61 N.Y.2d 9, 16–17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Bennett, 122 A.D.3d 871, 872, 996 N.Y.S.2d 369 ; People v. Jackson, 114 A.D.3d at 807–808, 979 N.Y.S.2d 704 ).
However, as the People correctly concede, the Supreme Court failed to pronounce sentence on the conviction of resisting arrest in the defendant's presence, in violation of its obligation under CPL 380.20 (see People v. Rose, 120 A.D.3d 593, 594, 990 N.Y.S.2d 832 ; People v. Henry, 80 A.D.3d 625, 626, 914 N.Y.S.2d 288 ; People v. White, 72 A.D.3d 993, 994, 898 N.Y.S.2d 512 ). Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing on both counts upon which the defendant was convicted in accordance with CPL 380.20.
MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.