People v. Adgate

Appellate Division of the Supreme Court of New York

People v. Adgate

8 A.D.3d 1108, 778 N.Y.S.2d 351, 2004 N.Y. App. Div. LEXIS 8160

Appellate Division of the Supreme Court of the State of New York·Decided June 14, 2004·Published·Cited by 1 cases

Opinion

Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J), rendered May 29, 2002. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

[1109] Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]). Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was voluntary, knowing and intelligent (see People v Torres, 236 AD2d 642 [1997], lv denied 89 NY2d 1041 [1997]; see also People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]). Furthermore, by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the guilty plea and sentence must be vacated based on County Court’s failure to advise him that he would be subject to a period of postrelease supervision (see People v Larweth, 303 AD2d 1029 [2003], lv denied 99 NY2d 656 [2003]; People v Shumway, 295 AD2d 916, 917 [2002]). Present—Pine, J.P., Hurlbutt, Gorski, Martoche and Lawton, JJ.

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Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J), rendered May 29, 2002. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

[1109] Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]). Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was voluntary, knowing and intelligent (see People v Torres, 236 AD2d 642 [1997], lv denied 89 NY2d 1041 [1997]; see also People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]). Furthermore, by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the guilty plea and sentence must be vacated based on County Court’s failure to advise him that he would be subject to a period of postrelease supervision (see People v Larweth, 303 AD2d 1029 [2003], lv denied 99 NY2d 656 [2003]; People v Shumway, 295 AD2d 916, 917 [2002]). Present—Pine, J.P., Hurlbutt, Gorski, Martoche and Lawton, JJ.

People v. Adgate, 8 A.D.3d 1108, 778 N.Y.S.2d 351, 2004 N.Y. App. Div. LEXIS 8160 (N.Y. Ct. App. 2004).

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