| People v Rodriguez |
| 2019 NY Slip Op 05064 |
| Decided on June 25, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 25, 2019
Renwick, J.P., Manzanet-Daniels, Webber, Oing, JJ.
9692 4213/05
v
Jeison Rodriguez, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered July 21, 2014, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him to a term of 3½ years, unanimously modified, on the law, to the extent of vacating the sentence and remanding for a youthful offender determination, and otherwise affirmed.
Defendant's claim that his plea was invalid because the court failed to inquire about a possible affirmative defense to attempted first-degree robbery, when he indicated during the plea allocution that the apparent firearm he displayed during the robbery was a toy, does not come within the narrow exception to the preservation requirement (see People v Toxey, 86 NY2d 725 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find no basis for any relief, because the factual allocution did not "cast[] significant doubt upon the defendant's guilt or otherwise call[] into question the voluntariness of the plea" (id. at 666).
As the People concede, defendant is entitled to an express youthful offender determination (see People v Rudolph, 21 NY3d 497 [2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 25, 2019
CLERK