| People v Rosado |
| 2010 NY Slip Op 01089 [70 AD3d 1315] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Hector R.Rosado, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered May16, 2007. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robberyin the first degree (Penal Law § 160.15 [4]), defendant contends that his plea was notvoluntarily entered because County Court erred in failing to conduct a sufficient inquiry duringthe plea colloquy with respect to whether defendant had consumed any drugs or medication onthat day. Defendant failed to preserve that contention for our review because he did not move towithdraw the plea or to vacate the judgment of conviction (see People v Garrett, 60 AD3d 1389 [2009]), and the narrowexception to the preservation doctrine does not apply with respect to defendant's contention(see People v Lopez, 71 NY2d 662, 666 [1988]). Defendant denied having any physicalor mental problems that would impair his ability to understand the plea proceedings, and"defendant's responses during the plea allocution established that defendant understood the termsand consequences of the plea" (Garrett, 60 AD3d at 1390).
In addition, defendant challenges the factual sufficiency of the plea allocution based on thecourt's failure to question him on the issue whether the shotgun used during the robbery wasloaded. That challenge, however, is encompassed by defendant's valid waiver of the right toappeal (see People v Daniels, 59AD3d 943 [2009], lv denied 12 NY3d 852 [2009]). In any event, defendant alsofailed to preserve that challenge for our review, and the narrow exception to the preservationdoctrine does not apply with respect thereto (see Lopez, 71 NY2d at 665-666). Althoughit is an affirmative defense to robbery in the first degree that the weapon in question was notloaded (see Penal Law § 160.15 [4]), "[n]othing in the plea allocution raised thepossibility that the affirmative defense was applicable" (People v Masterson, 57 AD3d 1443 [2008]).
Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to theseverity of the sentence (see People v Lococo, 92 NY2d 825, 827 [1998]; People vHidalgo, 91 NY2d 733, 737 [1998]). Present—Scudder, P.J., Centra, Fahey andGreen, JJ.