People v. Townsend

258 A.D.2d 458, 683 N.Y.S.2d 253

Opinion

—Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered May 30, 1995, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 5V2 to 11 years, unanimously affirmed.

Since defendant’s motion to withdraw his plea was made on different grounds, his claim that his plea was rendered involuntary by the court’s failure to inquire about the affirmative defense to robbery in the first degree is unpreserved for appellate review (People v Rafael, 243 AD2d 277, lv denied 91 NY2d 836), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant’s plea was knowing and voluntary. There was nothing in defendant’s allocution itself (see, People v Negron, 222 AD2d 327, lv denied 88 NY2d 882) that would raise the possibility of an affirmative defense or otherwise cast doubt on his guilt (People v Toxey, 86 NY2d 725).

Defendant’s statement concerning his ownership of pictures found in the complainant’s wallet was spontaneous and voluntary in that the questions and remarks were directed to the complainant and were not calculated to elicit an incriminating response from defendant (People v Quinto, 245 AD2d 121). Accordingly, the suppression motion was properly denied. Concur — Ellerin, J. P., Wallach, Mazzarelli and Andrias, JJ.