PEOPLE v. FRASER (1999)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jeffrey FRASER, Defendant-Appellant.

Decided: May 13, 1999

SULLIVAN, J.P., NARDELLI, WALLACH, ANDRIAS and SAXE, JJ.

Cheryl D. Harris, for Respondent. Janice Gittelman, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 18, 1997, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him to a term of 31/212 to 7 years, unanimously affirmed.

Contrary to the People's contention, defendant's waiver of his right to appeal does not foreclose review of his present challenge to the voluntariness of the plea (People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022). However, defendant's claim is unpreserved since he failed to challenge the plea allocution by moving either to withdraw the plea or to vacate the judgment of conviction (see, People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the totality of the allocution establishes the voluntariness of the plea. The particular one-word response that defendant now cites as evidence of involuntariness was inadvertent and was clarified moments later.

MEMORANDUM DECISION.

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