Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Daniel J. BOYDEN, Defendant–Appellant. (Appeal No. 1.).
Williams, Heinl, Moody & Buschman, P.C., Auburn (Mario J. Gutierrez of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Mario J. Gutierrez of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI AND VALENTINO, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of assault in the second degree (Penal Law § 120.05[3] ) in connection with an altercation with deputies at the Cayuga County Jail and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of, inter alia, robbery in the first degree (§ 160.15[3] ) in connection with his robbery of a convenience store. Defendant pleaded guilty to all counts of the two indictments in exchange for a sentence promise of concurrent determinate terms of imprisonment, to be followed by a period of postrelease supervision. By failing to move to withdraw his plea or to vacate the judgment of conviction in each appeal, defendant failed to preserve for our review his contention in each appeal that his plea of guilty was not voluntarily entered ( see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160, rearg. denied86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225; People v. Theall, 109 A.D.3d 1107, 1107, 971 N.Y.S.2d 753). In any event, defendant's contention is belied by the record of the plea proceeding in each appeal ( see People v. Weakfall, 108 A.D.3d 1115, 1115, 969 N.Y.S.2d 655, lv. denied21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152). The bargained-for sentence is not unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.