People v. Roy

248 A.D.2d 566, 669 N.Y.S.2d 907, 1998 N.Y. App. Div. LEXIS 2545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1998
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered July 31, 1996, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Inasmuch as the defendant failed to raise the claim that he was innocent of the crime to which he pleaded guilty by motion to vacate the plea of guilty or otherwise in the court of first instance, his argument that he should be relieved of his plea of guilty has not been preserved for appellate review (see, People v Pellegrino, 60 NY2d 636).

In any event, the defendant’s unsubstantiated claims of innocence, which were belied by his statement at the plea proceeding, provided no basis to vacate the plea (see, People v Walsh, 243 AD2d 590; People v Sanchez, 184 AD2d 537) or to conduct a hearing on the subject (see, People v Dickerson, 163 AD2d 610).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). It is well settled that affliction with the HIV virus or with AIDS, standing alone, does not warrant a reduction in an otherwise appropriate sentence (see, People v Perez, 181 AD2d 922).

The defendant’s remaining contention is without merit.

O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.