People v. Perez

169 A.D.2d 566, 565 N.Y.S.2d 704, 1991 N.Y. App. Div. LEXIS 521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Herman Cahn, J.), rendered April 16, 1986, convicting defendant, upon his plea of guilty, of two counts of robbery in the first degree and sentencing him, as a predicate felon, to concurrent terms of 10 to 20 years, unanimously affirmed.

As defendant never moved to withdraw his guilty plea, his argument that the elements of robbery in the first degree were not demonstrated in his plea allocution is unpreserved for appellate review as a matter of law. In any event, Penal Law § 160.15 (4) permits conviction of robbery in the first degree when the defendant displays what appears to be a pistol; the factual allocution established this element. Further, pleading guilty, defendant waived any affirmative defense (People v Gilliam, 65 AD2d 533), and there is no statement in the allocution which negated the element of intent.

We have examined defendant’s remaining contentions and find them to be meritless. Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Smith, JJ.