Opinion
2012-12-28
The PEOPLE of the State of New York, Respondent, v. Derrick WALTON, Defendant–Appellant.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered October 20, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the third degree. Leonard, Curley & Walsh, PLLC, Rome (Mark C. Curley of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered October 20, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the third degree.
Leonard, Curley & Walsh, PLLC, Rome (Mark C. Curley of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of robbery in the third degree (Penal Law § 160.05), defendant contends that his plea was not voluntarily, knowingly, and intelligently entered because he did not recite one of the elements of that crime, i.e., that he threatened the witness. Defendant's contention is actually a challenge to the factual sufficiency of the plea allocution, and thus that challenge is encompassed by the valid waiver of the right to appeal ( see People v. Peters, 59 A.D.3d 928, 928, 873 N.Y.S.2d 397,lv. denied12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935;People v. Branch, 49 A.D.3d 1206, 1206, 855 N.Y.S.2d 315,lv. denied10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405;People v. Wilson, 38 A.D.3d 1348, 1348, 832 N.Y.S.2d 333,lv. denied9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901).
*924It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.