People v. Birks

144 A.D.2d 566, 534 N.Y.S.2d 223, 1988 N.Y. App. Div. LEXIS 11946

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1988
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (King, J.), rendered May 28, 1986, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

On this appeal, the defendant challenges the sufficiency of the factual recitation of his plea of guilty. However, he did not move to withdraw his plea in the County Court on this ground, and, therefore, the claim is not preserved for appellate review as a matter of law (see, People v Pellegrino, 60 NY2d 636; People v Moore, 91 AD2d 1050).

In any event, the record establishes that the guilty plea was grounded on a sufficient factual allocution. The defendant admitted, in his own words, that he accosted a bank employee at gunpoint and demanded money. At the defendant’s direction, cans of money were removed from a safe and placed at the door of the bank. Under the circumstances, it is immaterial that the defendant did not admit to removing the money from the bank. By his own recital of the crime, the defendant established all the elements of the crime, including his exercise of control over the money wholly inconsistent with the owner’s continued rights (see, People v Olivo, 52 NY2d 309, rearg denied sub nom. People v Gasparik, 53 NY2d 797). Thus, the court properly accepted the guilty plea.

We further find that the defendant’s sentence was within the range of the plea agreement and was not excessive (see, People v Kazepis, 101 AD2d 816; People v Suitte, 90 AD2d 80). Mangano, J. P., Bracken, Eiber, Spatt and Sullivan, JJ., concur.