GAUSE, RAYMOND v. PEOPLE v

Appellate Division of the Supreme Court of New York

GAUSE, RAYMOND v. PEOPLE v

133 A.D.3d 1367, 19 N.Y.S.3d 461

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 20, 2015

DocketKA 11-00545

StatusPublished

This text of 133 A.D.3d 1367 (GAUSE, RAYMOND v. PEOPLE v) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

GAUSE, RAYMOND v. PEOPLE v, 133 A.D.3d 1367, 19 N.Y.S.3d 461 (N.Y. Ct. App. 2015).

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Opinion

Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered January 20, 2011. The judgment convicted defendant, upon his plea of guilty, of assault 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 plea of guilty of assault in the second degree (Penal Law § 120.05 [2]), defendant contends that his plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise him of all the rights he would be forfeiting upon pleading guilty (see generally Boykin v Alabama, 395 US 238, 243 [1969]; People v Tyrell, 22 NY3d 359, 361 [2013]). By failing to move to withdraw his plea or to vacate the judgment of conviction, however, defendant failed to preserve his contention for our review (see CPL 470.05 [2]; People v Landry, 132 AD3d 1351, 1351 [2015]), and the “narrow exception” to the preservation rule does not apply here inasmuch as defendant did not say anything during the plea colloquy that cast significant doubt on his guilt, or otherwise called into question the voluntariness of his plea (People v Lopez, 71 NY2d 662, 666 [1988]; see Landry, 132 AD3d at 1351-1352). As we recently noted, “[a]lthough the Court of Appeals in Tyrell vacated a guilty plea based on an unpreserved Boykinl ] claim, the defendant in that case was sentenced immediately following his plea and thus did not have an opportunity to move to withdraw his plea” (Landry, 132 AD3d at 1352; see Tyrell, 22 NY3d at 364). Here, in contrast, “defendant was sentenced more than [a] month] ] after he entered his guilty plea[ ], thus affording him ample time to bring a motion” (Landry, 132 AD3d at 1352). Present — Smith, J.P., Peradotto, Lindley, Valentino and DeJoseph, JJ.

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Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered January 20, 2011. The judgment convicted defendant, upon his plea of guilty, of assault 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 plea of guilty of assault in the second degree (Penal Law § 120.05 [2]), defendant contends that his plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise him of all the rights he would be forfeiting upon pleading guilty (see generally Boykin v Alabama, 395 US 238, 243 [1969]; People v Tyrell, 22 NY3d 359, 361 [2013]). By failing to move to withdraw his plea or to vacate the judgment of conviction, however, defendant failed to preserve his contention for our review (see CPL 470.05 [2]; People v Landry, 132 AD3d 1351, 1351 [2015]), and the “narrow exception” to the preservation rule does not apply here inasmuch as defendant did not say anything during the plea colloquy that cast significant doubt on his guilt, or otherwise called into question the voluntariness of his plea (People v Lopez, 71 NY2d 662, 666 [1988]; see Landry, 132 AD3d at 1351-1352). As we recently noted, “[a]lthough the Court of Appeals in Tyrell vacated a guilty plea based on an unpreserved Boykinl ] claim, the defendant in that case was sentenced immediately following his plea and thus did not have an opportunity to move to withdraw his plea” (Landry, 132 AD3d at 1352; see Tyrell, 22 NY3d at 364). Here, in contrast, “defendant was sentenced more than [a] month] ] after he entered his guilty plea[ ], thus affording him ample time to bring a motion” (Landry, 132 AD3d at 1352). Present — Smith, J.P., Peradotto, Lindley, Valentino and DeJoseph, JJ.

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133 A.D.3d 1367, 19 N.Y.S.3d 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gause-raymond-v-people-v-nyappdiv-2015.

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