Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Christopher J. KELLY, Defendant–Appellant.
David P. Elkovitch, Auburn, for defendant-appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered November 23, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted murder in the second degree.
David P. Elkovitch, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for respondent.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a guilty plea of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that his plea was coerced because County Court threatened to impose a greater sentence in the event of a conviction following trial (see People v. Lando, 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Defendant also failed to preserve his contention that his plea was coerced by the court's denial of his request for public funds and an adjournment to retain a psychiatric expert (see generally People v. Lesame, 239 A.D.2d 801, 802, 657 N.Y.S.2d 544, lv. denied 90 N.Y.2d 941, 664 N.Y.S.2d 759, 687 N.E.2d 656 ). In any event, we conclude that defendant's contention is belied by the record and without merit (see People v. Hall, 82 A.D.3d 1619, 1619–1620, 919 N.Y.S.2d 638, lv. denied 16 N.Y.3d 895, 926 N.Y.S.2d 31, 949 N.E.2d 979 ).
To the extent that defendant contends that he was denied the right to present a defense by an alleged denial of public funds to retain an expert, we conclude that, by pleading guilty, defendant forfeited the right to challenge any such denial (see People v. McGuay, 120 A.D.3d 1566, 1567, 993 N.Y.S.2d 228, lv. denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 ). We further conclude that defendant waived his right to appellate review of this issue because defense counsel “withdrew [the application] ‘before the court rendered its decision’ ” (People v. Hazzard, 129 A.D.3d 1598, 1600, 12 N.Y.S.3d 415, lv. denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 ; see People v. King, 115 A.D.3d 986, 987, 982 N.Y.S.2d 178, lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
PERADOTTO, J.P., CARNI, DeJOSEPH, NEMOYER, and CURRAN, JJ., concur.