| People v McKinney |
| 2018 NY Slip Op 04756 [162 AD3d 1073] |
| June 27, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William D. McKinney, Also Known as "Dollar Bill,"Appellant. |
Gary E. Eisenberg, New City, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Craig S.Brown, J.), rendered May 25, 2016, convicting him of manslaughter in the first degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowing, voluntary, or intelligentbecause the allocution was factually insufficient is unpreserved for appellate review, since thedefendant did not move to withdraw his plea on this ground prior to the imposition of sentence(see People v Elting, 151 AD3d739, 740 [2017]; People vMcKenzie, 98 AD3d 749, 750 [2012]). Moreover, the exception to the preservationrequirement does not apply here because the defendant's plea allocution did not cast significantdoubt on his guilt, negate an essential element of the crime, or call into question the voluntarinessof his plea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Sanchez, 122 AD3d 646,646 [2014]; People v McKenzie, 98 AD3d at 750). In any event, the record establishesthat the plea was entered into knowingly, voluntarily, and intelligently (see People vElting, 151 AD3d at 740; People v McKenzie, 98 AD3d at 750; People vMazzilli, 125 AD2d 602, 603 [1986]).
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Baldi,54 NY2d 137, 147 [1981]).
[*2] Although thedefendant correctly contends that he should have been sentenced as a second violent felonyoffender rather than as a second felony offender, he is not adversely affected by that adjudicationand it is not a basis upon which to withdraw his plea or have the sentence vacated (seeCPL 470.15 [1]; People v Hanyo,103 AD3d 814, 814 [2013]; see alsoPeople v Witherspoon, 100 AD3d 809, 809-810 [2012]). Scheinkman, P.J., Cohen,Duffy and Iannacci, JJ., concur.