| People v Lowe |
| 2017 NY Slip Op 06107 [153 AD3d 1043] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Jamie L.Lowe, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Torrance L. Schmitz of counsel),for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 25, 2014, convicting defendant upon his plea of guilty of the crime ofrobbery in the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to robbery in the seconddegree. County Court denied defendant's application for a "violent felony override," a documentreferred to in 7 NYCRR 1900.4 (c) (1) (iii), and sentenced defendant as a second felony offenderto a prison term of seven years, followed by five years of postrelease supervision, pursuant to aplea agreement that also included a waiver of appeal. Defendant now appeals.
We affirm. Initially, the People correctly concede that defendant did not waive his right toappeal his conviction and sentence, as the record reveals that County Court failed to engage inany discussion with defendant as to the agreed-upon waiver during the plea allocution (see People v Bradshaw, 18 NY3d257, 264-265 [2011]; People v Callahan, 80 NY2d 273, 283 [1992]). As to themerits, defendant contends that his guilty plea was not knowing, voluntary and intelligent. Suchcontention was not preserved for our review inasmuch as the record does not reflect thatdefendant made an appropriate postallocution motion to withdraw his guilty plea (see People v Millard, 147 AD3d1155, 1156 [2017], lv denied 29 NY3d 999 [2017]; People v Laflower, 145 AD3d1341, 1342 [2016]). Furthermore, we are not persuaded by defendant's argument that hisstatements during the plea allocution cast doubt upon his guilt or upon the voluntariness of hisplea so as to trigger the narrow exception to the preservation requirement (see People v Franklin, 146 AD3d1082, 1084 [2017], lv denied 29 NY3d 948 [2017]; People v Darrell, 145 AD3d 1316,1317 [2016]). Rather, the record establishes that defendant was advised of and understood thecharge against him and the consequences of a guilty plea, had conferred with counsel beforeentering his plea and unequivocally admitted that he committed the conduct constituting thecrime charged and that he was pleading guilty because he was, in fact, guilty (see People v Griffith, 136 AD3d1114, 1115 [2016], lv denied 28 NY3d 1184 [2017]; People v Barnes, 119 AD3d 1290,1291 [2014], lv denied 25 NY3d 987 [2015]; People v Bethel, 69 AD3d 1126, 1127 [2010]). Finally, we rejectdefendant's further contention that County Court erred in denying his request for a violent felonyoverride, as the issuance thereof is not provided for under any regulations or statutes, and CountyCourt complied with the requirements of 7 NYCRR 1900.4 (c) (1) (iii) by issuing the sentenceand commitment that properly specifies that defendant pleaded guilty to robbery in the seconddegree under Penal Law § 160.10 (1), the section under which defendant wasconvicted (see People v Ellis, 123AD3d 1054, 1054 [2014], lv denied 25 NY3d 989 [2015]; People v Nelson, 121 AD3d 719,720 [2014]; People v Lynch, 121AD3d 717, 718-719 [2014], lv denied 24 NY3d 1086 [2014]).
Peters, P.J., Rose, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.