People v. Acevedo

219 A.D.2d 560, 631 N.Y.S.2d 692, 1995 N.Y. App. Div. LEXIS 9640

Opinion

Judgment, Supreme Court, New York County (Clifford A. Scott, J.), rendered March 26, 1993, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him to a term of 5 to 15 years, unanimously affirmed.

Defendant’s argument that the court should not .have accepted his plea without inquiring into whether he understood that he had raised an affirmative defense to the first degree robbery charge by asserting that the gun possessed by his accomplice was not loaded (Penal Law § 160.15 [4]) is unpreserved for appellate review as a matter of law inasmuch as defendant never moved to withdraw the plea or to vacate the judgment and his recitation of the facts at the plea proceeding in fact did not raise an affirmative defense or otherwise cast significant doubt upon his guilt (People v Toxey, 86 NY2d 725, affg 202 AD2d 330; People v Lopez, 71 NY2d 662, 665-666). There being nothing in the record to indicate the existence of a possible affirmative defense, the court was under no duty to inquire further to ensure that the plea was being intelligently entered (People v Lopez, supra, at 666, n 2; see, People v Caraballo, 208 AD2d 413, lv denied 84 NY2d 1010; People v Martinez, 127 AD2d 855). Concur — Sullivan, J. P., Rubin, Kupferman, Asch and Nardelli, JJ.