Opinion
11-20-2015
The PEOPLE of the State of New York, Respondent, v. Raymond V. GAUSE, also Known as Raymond Von Gause, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Opinion
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that his plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise him of all the rights he would be forfeiting upon pleading guilty (see generally Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274; People v. Tyrell, 22 N.Y.3d 359, 361, 981 N.Y.S.2d 336, 4 N.E.3d 346). By failing to move to withdraw his plea or to vacate the judgment of conviction, however, defendant failed to preserve his contention for our review (see CPL 470.05[2]; People v. Landry, 132 A.D.3d 1351, ––––, 17 N.Y.S.3d 533 [2015] ), and the “narrow exception” to the preservation rule does not apply here inasmuch as defendant did not say anything during the plea colloquy that cast significant doubt on his guilt, or otherwise called into question the voluntariness of his plea (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see Landry, 132 A.D.3d at ––––, 17 N.Y.S.3d 533). As we recently noted, “[a]lthough the Court of Appeals in Tyrell vacated a guilty plea based on an unpreserved Boykin [ ] claim, the defendant in that case was sentenced immediately following his plea and thus did not have an opportunity to move to withdraw his plea” (Landry, 132 A.D.3d at ––––, 17 N.Y.S.3d 533; see Tyrell, 22 N.Y.3d at 364, 981 N.Y.S.2d 336, 4 N.E.3d 346). Here, in contrast, “defendant was sentenced more than [a] month[ ] after he entered his guilty plea[ ], thus affording him ample time to bring a motion” (Landry, 132 A.D.3d at ––––, 17 N.Y.S.3d 533).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and DeJOSEPH, JJ., concur.