People v. Pendergrass

115 A.D.2d 497, 495 N.Y.S.2d 721, 1985 N.Y. App. Div. LEXIS 54898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1985
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Agresta, J.), rendered November 30, 1981, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

Defendant’s contention that the plea allocution was deficient is not preserved for review on the appeal from this judgment because defendant failed to move to withdraw his plea before sentencing (see, People v Claudio, 64 NY2d 858; People v Pellegrino, 60 NY2d 636; People v Vanier, 110 AD2d 980). Defendant additionally argues that Penal Law § 70.06 is an ex post facto law as applied to him because his prior crime, which serves as the predicate crime in his predicate felony sentence, was committed before the enactment of said statute. We do not agree because the increased punishment was inflicted for the present crime only and not as an additional penalty for the prior offense (see, People v Mangiapane, 87 AD2d 851). O’Connor, J. P., Weinstein, Niehoff and Fiber, JJ., concur.