ABLACK, LINCOLN, PEOPLE v

        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

393
KA 13-00487
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LINCOLN C. ABLACK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered August 2, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree.

     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 his plea of guilty of robbery in the second degree
(Penal Law § 160.10 [1]) and, in appeal No. 2, he appeals from a
judgment convicting him upon a plea of guilty of, inter alia, assault
in the first degree (§ 120.10 [4]). We note at the outset that the
certificate of conviction in appeal No. 2 contains a clerical error,
i.e., it incorrectly recites that defendant was convicted of assault
in the second degree, and it must therefore be amended to reflect that
he was convicted of assault in the first degree (see People v Saxton,
32 AD3d 1286, 1286-1287).

     Defendant contends in each appeal that his respective pleas were
involuntary because he was misinformed with respect to his maximum
sentencing exposure. Defendant’s contention that his pleas were
involuntary survives his waiver of the right to appeal (see People v
Halsey, 108 AD3d 1123, 1124). By failing to move to withdraw the
respective pleas or to vacate the respective judgments of conviction
on that ground, however, defendant failed to preserve his contention
for our review (see People v Morrison, 78 AD3d 1615, 1616, lv denied
16 NY3d 834). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
                            -2-                  393
                                           KA 13-00487

CPL 470.15 [3] [c]).




Entered:   March 20, 2015         Frances E. Cafarell
                                  Clerk of the Court