| People v Tchiyuka |
| 2018 NY Slip Op 03044 [160 AD3d 1488] |
| April 27, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Brian Tchiyuka, Also known as "Breezy,"Appellant. |
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered April10, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a controlled substance in the seventh degree (Penal Law § 220.03),defendant contends that his Alford plea should be vacated because the plea was notvoluntarily, intelligently or knowingly entered, and the People did not explain the strengths oftheir case on the record. To the extent that defendant's contention involves the voluntariness ofhis plea, the contention survives his valid waiver of the right to appeal (see People v Miller, 87 AD3d1303, 1303-1304 [4th Dept 2011], lv denied 18 NY3d 926 [2012]; People v Dash, 74 AD3d 1859,1859-1860 [4th Dept 2010], lv denied 15 NY3d 892 [2010]).
We nevertheless conclude that defendant's contention is not preserved for our reviewinasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction(see Miller, 87 AD3d at 1303-1304; People v Hodge, 23 AD3d 1062, 1063 [4th Dept 2005]), and theplea allocution does not engender significant doubt regarding defendant's guilt or otherwise callinto question the voluntariness of the plea to bring this case within the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]; People vTownley, 286 AD2d 885, 885 [4th Dept 2001]).
In any event, defendant's challenge to the plea lacks merit. "Despite his denials of guilt,defendant stated clearly on the record that he wanted to enter a guilty plea to avoid the possibilityof a more severe sentence in the event that the case proceeded to trial. Defendant's statementsdemonstrate that his decision to enter a guilty plea despite his purported innocence was 'theproduct of a voluntary and rational choice,' and thus the Alford plea was proper"(Miller, 87 AD3d at 1304; see Hodge, 23 AD3d at 1063). Moreover, contrary todefendant's contention, County Court ensured that there was strong evidence of his guilt of theoffense to which he pleaded guilty (seePeople v Hinkle, 56 AD3d 1210, 1210 [4th Dept 2008]). Present—Centra, J.P.,Carni, Lindley and Curran, JJ.