People v. Ostrander

136 A.D.2d 760, 523 N.Y.S.2d 219, 1988 N.Y. App. Div. LEXIS 36

Opinion

Levine, J.

Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered June 4, 1985, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

Defendant’s first contention on appeal is that his guilty plea should not have been accepted by County Court since he was incapacitated by pain and/or pain-killing medication at the time of the plea. Defendant failed to preserve this issue for appellate review by moving either to withdraw the plea before sentencing or to vacate the judgment of conviction (see, People v Claudio, 64 NY2d 858). In any event, defendant’s contention that he was incapable of entering into a valid plea is belied by the record of the plea allocution which shows that defendant was questioned concerning his medication and ability to understand what was going on. His responses to these questions clearly indicated that his faculties were unimpaired and, hence, County Court did not err in accepting the plea (see, People v Bangert, 107 AD2d 752, 753).

Defendant’s second contention on appeal, that his sentence of 5 to 15 years’ imprisonment is harsh and excessive, is also rejected.

Judgment affirmed. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.