| People v Walton |
| 2012 NY Slip Op 09267 [101 AD3d 1792] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DerrickWalton, 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 October20, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the third degree.
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 robbery in thethird degree (Penal Law § 160.05), defendant contends that his plea was not voluntarily,knowingly, and intelligently entered because he did not recite one of the elements of that crime, i.e., thathe threatened the witness. Defendant's contention is actually a challenge to the factual sufficiency of theplea allocution, and thus that challenge is encompassed by the valid waiver of the right to appeal (see People v Peters, 59 AD3d 928,928 [2009], lv denied 12 NY3d 820 [2009]; People v Branch, 49 AD3d 1206, 1206 [2008], lv denied 10NY3d 932 [2008]; People v Wilson, 38AD3d 1348, 1348 [2007], lv denied 9 NY3d 927 [2007]). Present—Smith, J.P.,Peradotto, Lindley, Sconiers and Valentino, JJ.