Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Donique BOYD, Defendant–Appellant.
Leonard, Curley & Walsh PLLC, Rome (Mark C. Curley of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Leonard, Curley & Walsh PLLC, Rome (Mark C. Curley of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 [1] ). “Although the contention of defendant that he was coerced into pleading guilty and thus that the plea was not voluntarily entered survives the waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review” ( People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449;see People v. Ali, 96 N.Y.2d 840, 841, 729 N.Y.S.2d 434, 754 N.E.2d 193,revg.277 A.D.2d 138, 717 N.Y.S.2d 114;People v. Jackson, 90 A.D.3d 1692, 1693, 936 N.Y.S.2d 462,lv. denied18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712;People v. Dozier, 59 A.D.3d 987, 987–988, 872 N.Y.S.2d 317,lv. denied12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931). In any event, defendant's contention lacks merit. While we agree with defendant that it would have been impermissibly coercive for County Court to inform him that it would impose the maximum sentence if defendant chose to go to trial rather than to enter a plea ( see e.g. People v. Flinn, 60 A.D.3d 1304, 1305, 875 N.Y.S.2d 364;People v. Stevens, 298 A.D.2d 267, 268, 748 N.Y.S.2d 589,lv. dismissed99 N.Y.2d 585, 755 N.Y.S.2d 721, 785 N.E.2d 743), here the court merely informed defendant that he could “face” 25 years in state prison were he to be convicted after trial. We thus conclude that “the court's statement was a proper explanation of defendant's sentence exposure in the event that defendant chose not to plead guilty” ( Dozier, 59 A.D.3d at 988, 872 N.Y.S.2d 317;see Jackson, 90 A.D.3d at 1693, 936 N.Y.S.2d 462;People v. Bravo, 72 A.D.3d 697, 698, 899 N.Y.S.2d 280.,lv. denied15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219;People v. Boyde, 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570,lv. denied15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.