Opinion
03-22-2024
The PEOPLE of the State of New York, Respondent, v. Jonathan RIOS, Defendant-Appellant.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMY N. WALENDZIAK OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Michael L. Dollinger, J.), rendered September 22, 2021. The judgment convicted defendant upon his plea of guilty of robbery in the second degree.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMY N. WALENDZIAK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, GREENWOOD, NOWAK, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10 [2] [b]), defendant contends that his post-plea statements cast doubt on his guilt and require vacatur of the plea. Inasmuch as defendant’s challenge to the voluntariness of the plea would survive even a valid waiver of the right to appeal (see People v. Cunningham, 213 A.D.3d 1270, 1271, 182 N.Y.S.3d 459 [4th Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 845, 208 N.E.3d 73 [2023]; People v. Sapp, 210 A.D.3d 1431, 1432, 176 N.Y.S.3d 525 [4th Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 791, 204 N.E.3d 427 [2023]), we need not address the validity of the waiver of the right to appeal, which defendant does not challenge on appeal (see People v. Morseman, 199 A.D.3d 1475, 1475, 154 N.Y.S.3d 615 [4th Dept. 2021]). Defendant’s challenge to the voluntariness of his guilty plea, however, is not preserved for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Jones, 211 A.D.3d 1489, 1490, 180 N.Y.S.3d 412 [4th Dept. 2022], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 520, 213 N.E.3d 663 [2023]; People v. Garbarini, 64 A.D.3d 1179, 1179, 882 N.Y.S.2d 785 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009]), and this case does not fall within the narrow exception to the preservation rule set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988).