| People v Kilgore |
| 2007 NY Slip Op 08127 [45 AD3d 886] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Steven M.Kilgore, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered April 14, 2006, convicting defendant upon his plea of guilty of the crime of robbery inthe third degree.
Defendant was indicted on one count of robbery in the third degree stemming fromallegations that he entered a bank, handed the teller a note indicating that she had a certain periodof time within which to put money in a designated bag and then fled with approximately $4,500when she complied. He thereafter pleaded guilty to this charge in satisfaction of the indictment,as well as a pending charge in another county. His guilty plea included a waiver of the right toappeal. While no specific agreement was reached with respect to sentencing, it was agreed that,in consideration of defendant pleading guilty, County Court would not sentence him as apersistent felony offender. Sentenced as a second felony offender to 3½ to 7 years in prison,defendant now appeals. We affirm.
As noted, defendant waived the right to appeal and he does not challenge this waiver beforethis Court. This waiver precludes the present claims that his suppression motion pertaining to apretrial photo array was improperly denied (see People v Kemp, 94 NY2d 831, 833[1999]; People v Ware, 34 AD3d860 [2006], lv denied 8 NY3d 951 [2007]; People v [*2]Crannell, 23 AD3d769 [2005], lv denied 6 NY3d 774 [2006]), that his waiver of immunity before thegrand jury was ineffective (see People v Flihan, 73 NY2d 729, 731 [1988]; People vSobotker, 61 NY2d 44, 48-49 [1984]), that he received ineffective assistance of counsel (see People v Phillips, 41 AD3d969, 970 [2007]; People v Crannell, 23 AD3d at 769), that his sentence is harsh andexcessive (see People v Lopez, 6NY3d 248, 255-256 [2006]) and that County Court was biased against him (see People v McCafferty, 1 AD3d799 [2003], lv denied 2 NY3d 743 [2004]). Even if we were to consider these issues,we would find them to be lacking in merit.
To the extent that defendant challenges the voluntariness of his plea on the ground that hewas rushed into it and that he was not advised of all his options, his failure to move to withdrawthe plea or vacate the judgment of conviction renders this precise argument unpreserved forreview (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Phillips, 41AD3d at 969; People v Crannell, 23 AD3d at 770; People v Rivera, 20 AD3d 763, 764 [2005]). Focusing on certainportions of his allocution, defendant further argues that an exception to the preservation ruleexists because an essential element of robbery in the third degree was negated during thecolloquy (i.e., the use or threatened use of physical force) thus casting doubt on his guilt (seePeople v Lopez, 71 NY2d at 666-667). While during the allocution defendant initially deniedstealing, County Court conducted a sufficient follow-up inquiry to ensure that he understood thenature of the charge against him and that his plea to same was knowing and voluntary (seeid. at 667). Notably, defendant thereafter acknowledged that he threatened the bank teller anddemanded money from her. In short, reviewing the preserved arguments attacking the voluntarynature of his plea, we find that "[n]othing in the record of the plea allocution called into questionthe voluntary, knowing and intelligent nature of defendant's bargained-for plea" (People v Seeber, 4 NY3d 780, 780[2005]; see People v Lopez, 71 NY2d at 668; People v Phillips, 41 AD3d at969-970; People v Rivera, 20 AD3d at 764).
The remaining contentions, including those contained in defendant's pro se supplementalbrief, have been reviewed and rejected.
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.