People v. Parsons

199 A.D.3d 1486

154 N.Y.S.3d 598 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Tyrone A. PARSONS, Defendant-Appellant.

994

KA 17-00495

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 19, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted criminal possession of a weapon in the third degree ( Penal Law §§ 110.00, 265.02 [1] ), defendant contends that his plea colloquy does not set forth the elements of the crime to ensure that he knowingly entered his plea. We note that defendant does not challenge the validity of his waiver of the right to appeal. Defendant's contention " ‘is actually a challenge to the factual sufficiency of the plea allocution,’ " which is encompassed by his valid waiver of the right to appeal ( People v. Rodriguez , 173 A.D.3d 1840, 1841, 104 N.Y.S.3d 469 [4th Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 627, 134 N.E.3d 626 [2019] ; see People v. Burtes , 151 A.D.3d 1806, 1807, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] ).

Moreover, even assuming, arguendo, that the waiver of the right to appeal is invalid (see generally People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020] ), we conclude that defendant's "challenge to the factual sufficiency of the plea allocution ... is not preserved for our review inasmuch as defendant did not move to withdraw his plea or to vacate the judgment of conviction" ( People v. Pryce , 148 A.D.3d 1625, 1625-1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; see People v. Turner , 175 A.D.3d 1783, 1784, 109 N.Y.S.3d 528 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 177, 139 N.E.3d 835 [2019] ), and this case does not fall within the narrow exception to the preservation rule set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988).