| People v Bailey |
| 2015 NY Slip Op 07283 [132 AD3d 690] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Hokeel Hoe Bailey, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Joanne Legano Ross of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Camacho, J.), rendered October 17, 2011, convicting him of robbery in the seconddegree and resisting arrest, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence; as somodified, the judgment is affirmed, and the matter is remitted to the Supreme Court,Queens County, for resentencing in accordance herewith.
The defendant's contention that his plea of guilty was not knowingly or voluntarilyentered is not preserved for appellate review because he did not move to vacate his pleaor otherwise raise the issue before the Supreme Court (see CPL 470.05 [2]; People v Jackson, 114 AD3d807 [2014]; People vFolger, 110 AD3d 736 [2013]). Contrary to the defendant's contention, theexception to the preservation requirement does not apply here, as the defendant's pleaallocution did not cast significant doubt upon his guilt, negate an essential element of thecrime, or call into question the voluntariness of the plea (see People v Tyrell, 22 NY3d359, 364 [2013]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Fontanet, 126 AD3d723 [2015]). In any event, the record of the plea proceedings reflects that thedefendant's plea of guilty was knowingly, voluntarily, and intelligently entered (seePeople v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Harris, 61 NY2d9, 16-17 [1983]; People vBennett, 122 AD3d 871, 872 [2014]; People v Jackson, 114 AD3d at807-808).
However, as the People correctly concede, the Supreme Court failed to pronouncesentence on the conviction of resisting arrest in the defendant's presence, in violation ofits obligation under CPL 380.20 (see People v Rose, 120 AD3d 593, 594 [2014]; People v Henry, 80 AD3d625, 626 [2011]; People vWhite, 72 AD3d 993, 994 [2010]). Accordingly, the sentence must be vacatedand the matter remitted to the Supreme Court, Queens County, for resentencing on bothcounts upon which the defendant was convicted in accordance with CPL 380.20. Mastro,J.P., Hall, Sgroi and Duffy, JJ., concur.