| People v Torres |
| 2014 NY Slip Op 03141 [117 AD3d 1497] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vArmando R. Torres, Also Known as "Mondo," Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedJune 28, 2012. The judgment convicted defendant, upon his plea of guilty, of robbery inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of robbery in the first degree (Penal Law § 160.15 [3]). We rejectdefendant's contention that County Court abused its discretion in denying his motion towithdraw his plea without a hearing (see People v Merritt, 115 AD3d 1250, 1250-1251[2014]; see generally People vMitchell, 21 NY3d 964, 966 [2013]). Defendant's belated and unsupportedclaims of innocence and coercion were insufficient to justify a hearing (see People v Sparcino, 78AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). We rejectdefendant's further contention that his plea was jurisdictionally defective. Defendantpleaded guilty to the crime charged in the indictment (cf. People v Castillo, 8 NY3d 959, 960-961 [2007]) and, byhis guilty plea, defendant forfeited any challenge to the alleged amendment of theindictment (see People vMartinez, 52 AD3d 68, 71 [2008], lv denied 11 NY3d 791 [2008]).Defendant's valid waiver of the right to appeal precludes review of the factual sufficiencyof the plea allocution and forecloses defendant's challenge to the severity of his sentence(see People v Talley, 112AD3d 1347, 1347 [2013]; People v Nash, 38 AD3d 684, 684 [2007], lvdenied 9 NY3d 848 [2007]). While defendant's contention that his plea was notvoluntary survives the waiver of the right to appeal and was preserved by his motion towithdraw his plea, we conclude that the contention is without merit inasmuch as it isbelied by the record (see Merritt, 115 AD3d at 1251). Present—Scudder,P.J., Centra, Fahey, Sconiers and Valentino, JJ.