Opinion
September 16, 1993
Appeal from the Supreme Court, New York County (Allen Alpert, J.).
Defendant's challenge to the sufficiency of the plea allocution is unpreserved because he failed to make a motion to withdraw the plea (CPL 220.60) or to vacate the judgment of conviction (CPL 440.10; People v Lopez, 71 N.Y.2d 662, 665). Were we to reach defendant's claim in the interest of justice, we would find that it fails on the merits. The colloquy at the plea allocution demonstrates that defendant did not deny that he had used a loaded firearm during the robbery or otherwise put the court on notice that an affirmative defense under Penal Law § 160.15 (4) might be available (compare, People v LeGrand, 155 A.D.2d 482, lv denied 75 N.Y.2d 814). The court gave defendant ample opportunity to clarify whether the object he displayed was a loaded firearm, but his responses to the court's inquiries were evasive, asserting that he had not "stipulate[d] [to the victim] whether it was a gun or not" and alternatively referring to the object used as "weapon" or "metal object". The record further shows that defendant understood he would receive a much lower sentence by pleading guilty than he could receive if convicted after a trial, and was aware of the nature of the rights he was waiving by pleading guilty. We conclude that the plea was entered knowingly and voluntarily.
We have considered defendant's argument that the sentence was excessive. In view of defendant's extensive criminal record, we find no abuse of discretion in the sentence imposed.
Concur — Rosenberger, J.P., Wallach, Asch and Rubin, JJ.