| People v Scales |
| 2014 NY Slip Op 04674 [118 AD3d 1500] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRodney L. Scales, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedMarch 19, 2010. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the 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 attempted robbery in the first degree (Penal Law §§ 110.00,160.15 [4]). Defendant failed to preserve for our review his challenge to the factualsufficiency of the plea allocution because he did not move to withdraw the plea or tovacate the judgment of conviction on that ground (see People v Lopez, 71 NY2d662, 665 [1988]). In any event, "no factual colloquy was required inasmuch as defendantpleaded guilty to a lesser included offense" (People v Thelbert, 17 AD3d 1049, 1049 [2005]; see People v Thousand, 96AD3d 1439, 1440 [2012], lv denied 19 NY3d 1002 [2012]).
Defendant further contends that County Court should have afforded him theopportunity to withdraw his guilty plea because his postplea assertions of innocence castdoubt on whether the plea was knowingly, intelligently, and voluntarily entered.Defendant did not move to withdraw the plea or vacate the judgment on that ground and,thus, that contention is not preserved for our review (see People v Eagle, 105 AD3d 1453, 1453-1454 [2013],lv denied 21 NY3d 1073 [2013]; cf. People v Nelson, 66 AD3d 1430, 1430 [2009], lvdenied 14 NY3d 772 [2010]). In any event, that contention lacks merit." '[A] defendant is not entitled to withdraw his guilty plea based on a subsequentunsupported claim of innocence, where the guilty plea was voluntarily made with theadvice of counsel following an appraisal of all the relevant factors' " (Peoplev Alexander, 97 NY2d 482, 485 [2002]; see People v Gleen, 73 AD3d 1443, 1444 [2010], lvdenied 15 NY3d 773 [2010]). Present—Smith, J.P., Fahey, Peradotto,Sconiers and Valentino, JJ.