Opinion
919 KA 16–00002
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Michael J. WESLEY, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree ( Penal Law § 140.25 [2 ] ) and grand larceny in the fourth degree (§ 155.30[1] ). We reject defendant's contention that the showup procedure was unduly suggestive because he was standing next to a vehicle matching the description given by the witness (see People v. Williams, 118 A.D.3d 1478, 1479, 988 N.Y.S.2d 381 [4th Dept. 2014], lv denied 24 N.Y.3d 1090, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ; see generally People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ). To the extent that defendant's contention that he was denied effective assistance of counsel survives his plea (cf. People v. Abdulla, 98 A.D.3d 1253, 1254, 951 N.Y.S.2d 286 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ), we conclude that it is without merit (see People v. Booth, 158 A.D.3d 1253, 1255, 70 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 100, 103 N.E.3d 1247 [2018] ; see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Defendant's challenge to the factual sufficiency of the plea allocution is not preserved for our review because he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Pryce, 148 A.D.3d 1625, 1625–1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; People v. Saddler, 144 A.D.3d 1520, 1520–1521, 44 N.Y.S.3d 820 [4th Dept. 2016], lv denied 28 N.Y.3d 1188, 52 N.Y.S.3d 715, 75 N.E.3d 107 [2017] ). This case does not fall within the rare exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Finally, the sentence is not unduly harsh or severe.