Opinion
2018–08340 Ind.No. 1574/16
11-13-2019
The PEOPLE, etc., Respondent, v. Wayne A. DUNKLEY, Appellant.
Matthew Muraskin, Port Jefferson, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce and Marion Tang of counsel), for respondent.
Matthew Muraskin, Port Jefferson, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce and Marion Tang of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark Cohen, J.), rendered May 17, 2018, convicting him of conspiracy in the second degree and attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed. The defendant contends that his plea of guilty was not knowing, voluntary, or intelligent. Since this issue would survive a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ), we do not consider the validity of the defendant's purported appeal waiver (see People v. Manzanales, 170 A.D.3d 752, 93 N.Y.S.3d 587 ). The defendant's contention that his plea was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review because he did not move to withdraw his plea (see CPL 470.05[2] ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Pleitez–Raymundo, 160 A.D.3d 902, 71 N.Y.S.3d 886 ; People v. Spencer, 149 A.D.3d 983, 52 N.Y.S.3d 430 ). Moreover, the exception to the preservation requirement does not apply because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Coleman, 164 A.D.3d 518, 518–519, 77 N.Y.S.3d 884 ). In any event, the record of the plea proceedings demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Coleman, 164 A.D.3d at 519, 77 N.Y.S.3d 884 ).
The defendant's post-plea assertions regarding his innocence contradicted the admissions he made under oath at his plea allocution, and were insufficient to warrant vacatur of his plea (see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 ; People v. Martinez, 129 A.D.3d 1106, 1107, 11 N.Y.S.3d 686 ; People v. Dazzo, 92 A.D.3d 796, 796, 938 N.Y.S.2d 446 ). Further, contrary to the defendant's contention, his responses to the court's inquiries during sentencing did not cast significant doubt upon his guilt or otherwise call into question the voluntariness of the plea (see People v. Williams, 27 N.Y.3d 212, 220, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).
RIVERA, J.P., AUSTIN, LEVENTHAL and IANNACCI, JJ., concur.