PEOPLE v. SWEENEY (2011)

 On appeal from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[4] ), defendant contends that County Court erred in refusing to allow defendant to withdraw his guilty plea because the plea was not voluntarily entered.   We note that, in support of his motion to withdraw the plea, defendant contended only that he was denied effective assistance of counsel.   Defendant thus failed to preserve for our review his present contention that his plea was not voluntarily entered, inasmuch as he also failed to move to vacate the judgment of conviction on that ground (see People v. Mackey, 79 A.D.3d 1680, 913 N.Y.S.2d 622, lv. denied 16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201).   In any event, we reject defendant's contention.   The court's statement that defendant could not receive a more lenient sentence if a jury convicted him after trial and that the sentence promise of 10 years was reasonable did not render the plea involuntary, in view of the transcript of the plea colloquy when read as a whole (see People v. Jackson, 64 A.D.3d 1248, 1249, 883 N.Y.S.2d 684, lv. denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017;  see also People v. Boyde, 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570, lv. denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219).  “ ‘The fact that defendant may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced’ ” (Boyde, 71 A.D.3d at 1443, 897 N.Y.S.2d 570).

 We further conclude that the police had reasonable suspicion to stop and detain defendant for the two show-up identification procedures based upon the totality of the circumstances (see People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358;  see also People v. Wiley, 32 A.D.3d 1352, 821 N.Y.S.2d 350, lv. denied 7 N.Y.3d 930, 827 N.Y.S.2d 698, 860 N.E.2d 1000).   Finally, although show-up identifications are generally disfavored because they are suggestive by their very nature (see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337), we conclude under the circumstances of this case that the show-up identifications that were the subject of the suppression hearing arising from two distinct robberies were valid (see People v. Riley, 70 N.Y.2d 523, 529, 522 N.Y.S.2d 842, 517 N.E.2d 520).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: