| People v Rodriguez |
| 2008 NY Slip Op 04892 [51 AD3d 1043] |
| May 27, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v George Rodriguez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Motion by the defendant for leave to reargue a decision and order of this Court datedNovember 20, 2007, which determined appeals from two judgments of the Supreme Court, KingsCounty, both rendered June 1, 2005.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the motion is granted, and upon reargument, the decision and order of this Courtdated November 20, 2007 (People v Rodriguez, 45 AD3d 786 [2007]) in theabove-entitled action is recalled and vacated and the following decision and order is substitutedtherefor:
Appeals by the defendant from two judgments of the Supreme Court, Kings County(Konviser, J.), both rendered June 1, 2005, convicting him of robbery in the first degree androbbery in the second degree (two counts) under indictment No. 1458/04, and robbery in the firstdegree under indictment No. 4691/04, upon his pleas of guilty, and imposing sentences. Theappeal from the judgment rendered under indictment No. 1458/04 brings up for review thedenial, after a hearing (Marrus, J.), of that branch of the defendant's omnibus motion which wasto suppress physical evidence.[*2]
Ordered that the judgments are affirmed.
The record does not reflect that the defendant knowingly, voluntarily, and intelligentlywaived his right to appeal (see People v Lopez, 6 NY3d 248 [2006]; People v Hurd,44 AD3d 791 [2007]; cf. People v Ramos, 7 NY3d 737 [2006]). We find that thehearing court properly denied that branch of the defendant's omnibus motion which was tosuppress physical evidence (see People v Gray, 35 AD3d 629 [2006]). Furthermore, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention, raised in his supplemental pro se brief, that his plea of guilty wasnot knowing, voluntary, and intelligent, is unpreserved for appellate review, since he did notmove to withdraw his plea of guilty, and the case does not fall within the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662 [1988]; see also Peoplev Toxey, 86 NY2d 725 [1995]; People v Martin, 7 AD3d 640 [2004]). We decline toreach this issue in the exercise of our interest of justice jurisdiction. Prudenti, P.J., Lifson, Ritterand Miller, JJ., concur.