People v. Toxey

202 A.D.2d 330, 609 N.Y.S.2d 12, 1994 N.Y. App. Div. LEXIS 2826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered April 24, 1992, convicting defendant, upon his plea of guilty, of four counts of robbery in the first degree and sentencing him to four concurrent terms of 7 to 21 years, unanimously affirmed.

Defendant’s contention that his allocution to two of the four first degree robbery charges to which he pleaded guilty stated that while he displayed what appeared to be a pistol he did not have a gun, and that the court erred in failing to inquire whether he understood that he had thereby raised an affirmative defense, is unpreserved for review as a matter of law, defendant never having moved to withdraw his plea or to vacate the judgment of conviction (People v Campo, 196 AD2d 720). Nor does the case fit within the narrow exception to the preservation doctrine set forth in People v Lopez (71 NY2d 662, 666), since defendant’s statements that he placed his hand in his pocket while demanding the money from one victim, and placed an object against another victim’s head while demanding money, "did not negate an element of the crimes to which he pleaded guilty but actually were admissions of the element ([d]isplay[ed] what appealed] to be a pistol [or] revolver’ ” (People v Willingham, 194 AD2d 703, lv denied 82 NY2d 729). In any event, were we to reach the issue in the interest of justice, we would find that the plea was knowing and voluntary (People v Frascone, 176 AD2d 128). Concur — Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.