SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
241
KA 13-00047
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GERARD ALLEN, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered November 7, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.
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 first degree (Penal Law § 160.15
[4]), defendant contends that his plea was not voluntarily, knowingly,
and intelligently entered because a potential defense was raised prior
to the plea proceeding. Defendant failed to preserve that contention
for our review because he did not move to withdraw his plea or to
vacate the judgment of conviction, and this case does not fall within
the rare exception to the preservation requirement set forth in People
v Lopez (71 NY2d 662, 666) inasmuch as nothing in the plea colloquy
calls into question the voluntariness of the plea or casts significant
doubt on defendant’s guilt (see People v Wilson, 115 AD3d 1229, 1229,
lv denied 23 NY3d 969). To the extent that defendant contends that
the potential defense was raised in the presentence report, defendant
likewise failed to preserve that contention for our review (see People
v Young, 281 AD2d 950, 950, lv denied 96 NY2d 909). Contrary to
defendant’s further contention, the sentence is not unduly harsh or
severe.
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court