Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Rodney L. SCALES, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, “no factual colloquy was required inasmuch as defendant pleaded guilty to a lesser included offense” ( People v. Thelbert, 17 A.D.3d 1049, 1049, 793 N.Y.S.2d 784;see People v. Thousand, 96 A.D.3d 1439, 1440, 945 N.Y.S.2d 891,lv. denied19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924).
Defendant further contends that County Court should have afforded him the opportunity to withdraw his guilty plea because his postplea assertions of innocence cast doubt on whether the plea was knowingly, intelligently, and voluntarily entered. Defendant did not move to withdraw the plea or vacate the judgment on that ground and, thus, that contention is not preserved for our review ( see People v. Eagle, 105 A.D.3d 1453, 1453–1454, 963 N.Y.S.2d 499,lv. denied21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147;cf. People v. Nelson, 66 A.D.3d 1430, 1430, 885 N.Y.S.2d 849,lv. denied 14 N.Y.3d 772, 898 N.Y.S.2d 104, 925 N.E.2d 109). In any event, that contention lacks merit. “ ‘[A] defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors' ” ( People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802;see People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812,lv. denied15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.