People v Williams

2014 NY Slip Op 09065 [123 AD3d 1374]

December 31, 2014

Appellate Division, Third Department

As corrected through Friday, March 27, 2015

[*1]

The People of the State of New York, Respondent, vWarren Williams, Appellant.

M. Joe Landry, Schenectady, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.

Garry, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered December 16, 2011, convicting defendant upon his plea of guilty ofthe crimes of burglary in the first degree, robbery in the second degree (two counts),grand larceny in the fourth degree (two counts), assault in the second degree andstrangulation in the second degree.

As the result of his involvement in the assault and robbery of a night clerk at abanquet hall, defendant was charged in an indictment with burglary in the first degree,two counts of robbery in the second degree, two counts of grand larceny in the fourthdegree, assault in the second degree and strangulation in the second degree. He pleadedguilty to all of the charges. Under the terms of the plea agreement, he was to besentenced to an aggregate term of between 5 and 10 years in prison, with postreleasesupervision to be imposed on all determinate sentences, and he was to pay restitution. Inaccordance therewith, defendant was sentenced to an aggregate term of71/2 years in prison, to be followed by three years of postreleasesupervision, and was ordered to pay restitution in the amount of $2,952.62. He nowappeals.

Defendant challenges the voluntariness of his guilty plea as well as the propriety ofCounty Court's award of restitution. However, these claims are unpreserved. The recorddoes not reveal that defendant moved to withdraw his guilty plea as involuntary and,therefore, he has failed to preserve his challenge to it on this basis (see People v Wasley, 119AD3d 1216, 1216 [2014], lv denied 24 NY3d 1048 [Nov. 25,2014]; see also People vO'Neill, 116 AD3d 1240, 1241 [2014]). We find that the narrow exception tothe preservation rule is inapplicable here given that defendant did not make anystatements casting doubt upon his guilt or negating a material element of the crime (see People v Chavis, 117AD3d 1193, 1194 [2014]; People v Pearson, 110 AD3d 1116, 1116 [2013]).Likewise, defendant has failed to preserve his challenge to the restitution amount, as hedid not request a restitution hearing or object to the amount of [*2]restitution awarded at sentencing (see People v Lyman, 119AD3d 968, 970 [2014]; People v Naumowicz, 76 AD3d 747, 748 [2010]).Accordingly, the judgment must be affirmed.

Peters, P.J., Stein, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.