People v. Fraser

Appellate Division of the Supreme Court of New York

People v. Fraser

261 A.D.2d 206, 691 N.Y.S.2d 30, 1999 N.Y. App. Div. LEXIS 5284

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

DecidedMay 13, 1999

StatusPublished

Cited by1 cases

This text of 261 A.D.2d 206 (People v. Fraser) 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

People v. Fraser, 261 A.D.2d 206, 691 N.Y.S.2d 30, 1999 N.Y. App. Div. LEXIS 5284 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 18, 1997, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him to a term of 3V2 to 7 years, unanimously affirmed.

Contrary to the People’s contention, defendant’s waiver of his right to appeal does not foreclose review of his present challenge to the voluntariness of the plea (People v Seaberg, 74 NY2d 1, 10). However, defendant’s claim is unpreserved since he failed to challenge the plea allocution by moving either to withdraw the plea or to vacate the judgment of conviction (see, People v Toxey, 86 NY2d 725), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the totality of the allocution establishes the voluntariness of the plea. The particular one-word response that defendant now cites as evidence of involuntariness was inadvertent and was clarified moments later. Concur — Sullivan, J. P., Nardelli, Wallach, Andrias and Saxe, JJ.

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—Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 18, 1997, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him to a term of 3V2 to 7 years, unanimously affirmed.

Contrary to the People’s contention, defendant’s waiver of his right to appeal does not foreclose review of his present challenge to the voluntariness of the plea (People v Seaberg, 74 NY2d 1, 10). However, defendant’s claim is unpreserved since he failed to challenge the plea allocution by moving either to withdraw the plea or to vacate the judgment of conviction (see, People v Toxey, 86 NY2d 725), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the totality of the allocution establishes the voluntariness of the plea. The particular one-word response that defendant now cites as evidence of involuntariness was inadvertent and was clarified moments later. Concur — Sullivan, J. P., Nardelli, Wallach, Andrias and Saxe, JJ.

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Bluebook (online)

261 A.D.2d 206, 691 N.Y.S.2d 30, 1999 N.Y. App. Div. LEXIS 5284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fraser-nyappdiv-1999.

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