Opinion
1212 KA 18-02184
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Robert BENTLEY, Defendant-Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 offering a false instrument for filing in the first degree ( Penal Law § 175.35 [1] ). As a preliminary matter, we note that, as the People correctly concede, defendant did not waive his right to appeal (see People v. Dangerfield , 140 A.D.3d 1626, 1626, 33 N.Y.S.3d 612 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ).
Defendant's contention that his guilty plea was not knowing, voluntary, and intelligent because he did not give an affirmative verbal acknowledgment of understanding when County Court explained to him his Boykin rights (see Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969]) is not preserved for our review inasmuch as defendant did not move to withdraw his plea or to vacate the judgment of conviction on that ground (see People v. Hampton , 142 A.D.3d 1305, 1306, 38 N.Y.S.3d 319 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016], citing, inter alia, People v. Conceicao , 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; see also People v. Brown , 151 A.D.3d 1951, 1951-1952, 59 N.Y.S.3d 227 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) ; see generally People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 (4th Dept. 2018), lv denied 31 N.Y.3d 1015, 102 N.E.3d 1066 (2018) ).
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.