| People v Bailey |
| 2008 NY Slip Op 02342 [49 AD3d 1258] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Randy Bailey,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedDecember 14, 2004. The judgment convicted defendant, upon his plea of guilty, of robbery in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofrobbery in the third degree (Penal Law § 160.05). We note at the outset that, contrary tothe contention of defendant, his waiver of the right to appeal is not void as against public policy(see generally People v Muniz, 91 NY2d 570, 573-575 [1998]; People vCallahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74 NY2d 1, 7-11 [1989]).The further contention of defendant that his plea was not knowing, voluntary, or intelligentbecause he did not recite the underlying facts of the crime but simply replied to County Court'squestions with monosyllabic responses is actually a challenge to the factual sufficiency of theplea allocution (see People v Cole,42 AD3d 963 [2007], lv denied 9 NY3d 990 [2007]). That contention isencompassed by defendant's valid waiver of the right to appeal (see id.), and we furthernote that defendant failed to preserve his contention for our review by challenging the factualsufficiency of the plea allocution in his motion to withdraw the plea or by moving to vacate thejudgment of conviction on that ground (see People v Lopez, 71 NY2d 662, 665[1988]; People v Brown, 305 AD2d 1068 [2003], lv denied 100 NY2d 579[2003]). In any event, there is no requirement that defendant recite the underlying facts of thecrime to which he is pleading guilty (see Brown, 305 AD2d at 1069). Finally, the courtdid not abuse its discretion in denying defendant's motion to withdraw the guilty plea (seeCPL 220.60 [3]). The record establishes that defendant was afforded a reasonableopportunity to present his factual and legal contentions, which "enabled [the court] to make [therequisite] informed determination" in denying defendant's motion (People v Tinsley, 35NY2d 926, 927 [1974]). Present—Martoche, J.P., Lunn, Fahey, Peradotto and Pine, JJ.