Opinion
1016 KA 21-00728
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Tombe YANGA, Defendant-Appellant. (Appeal No. 1.)
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a plea of guilty of robbery in the second degree ( Penal Law § 160.10 [1] ). In appeal No. 2, he appeals from a judgment convicting him upon a plea of guilty of attempted murder in the second degree (§§ 110.00, 125.25 [1]), assault in the second degree (§ 120.05 [2]), and criminal possession of a weapon in the second degree (§ 265.03 [3]). In appeal No. 3, he appeals from a judgment convicting him upon a plea of guilty of two counts of criminal possession of a controlled substance in the seventh degree (§ 220.03). In appeal No. 4, he appeals from a judgment convicting him upon a plea of guilty of criminal possession of stolen property in the fourth degree (§ 165.45 [5]). The four pleas were taken during one proceeding.
Defendant contends in each of the four appeals that his plea was involuntary because, during the plea colloquy, the court did not advise him that he would be forfeiting his right against self-incrimination by pleading guilty. We conclude that defendant "failed to preserve that contention for our review because ... he failed to move to withdraw the plea or to vacate the judgment of conviction" ( People v. Connolly , 70 A.D.3d 1510, 1511, 894 N.Y.S.2d 694 [4th Dept. 2010], lv denied 14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010 [2010] ; see People v. Ramos-Perez , 188 A.D.3d 1741, 1742, 132 N.Y.S.3d 909 [4th Dept. 2020], lv denied 36 N.Y.3d 1099, 144 N.Y.S.3d 122, 167 N.E.3d 1257 [2021] ). In any event, defendant's contention is without merit. After reviewing the record as a whole and the circumstances of the plea in its totality, we conclude that the plea was knowing, intelligent, and voluntary (see People v. Barnes , 206 A.D.3d 1713, 1714-1715, 169 N.Y.S.3d 446 [4th Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 853, 193 N.E.3d 518 [2022] ).
Finally in appeal No. 3, we note that the certificate of conviction incorrectly reflects that defendant was convicted of one count of criminal possession of a controlled substance in the seventh degree, and it must therefore be amended to reflect that he was convicted of two counts of criminal possession of a controlled substance in the seventh degree (see People v. Raghnal , 185 A.D.3d 1411, 1414, 127 N.Y.S.3d 665 [4th Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 511, 158 N.E.3d 528 [2020] ).