SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1085
KA 13-02166
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JASON R. ALEXANDER, DEFENDANT-APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.
DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered October 7, 2013. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first degree (two counts) and course of sexual
conduct against a child in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
guilty plea of, inter alia, two counts of course of sexual conduct
against a child in the first degree (Penal Law § 130.75 [1] [a]),
defendant contends that his guilty plea was not knowingly and
voluntarily entered. Defendant failed to preserve his contention for
our review because he failed to move to withdraw the plea or to vacate
the judgment of conviction (see People v Laney, 117 AD3d 1481, 1482).
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 casts significant doubt on
defendant’s guilt or the voluntariness of the plea’ ” (Laney, 117 AD3d
at 1482).
Defendant failed to preserve for our review his contention that
County Court should have assigned defendant substitute counsel before
proceeding to sentencing, inasmuch as the record indicates that
defendant never requested new counsel (see People v Johnson, 94 AD3d
1496, 1496-1497, affd 20 NY3d 990; see generally CPL 470.05 [2]). We
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]).
-2- 1085
KA 13-02166
Finally, the sentence is not unduly harsh or severe.
Entered: October 9, 2015 Frances E. Cafarell
Clerk of the Court