THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GREGORY BAIRD DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

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 robbery in the first degree (Penal Law § 160.15[3] ), defendant contends that his plea was not knowing and voluntary because County Court did not conduct the requisite further inquiry after he negated an essential element of the crime during the plea colloquy by denying that he threatened the use of a dangerous instrument.  At the outset, we note that defendant's contention survives his valid waiver of the right to appeal (see People v. Theall, 109 AD3d 1107, 1107–1108, lv denied 22 NY3d 1159).  Nevertheless, even assuming, arguendo, that his contention falls within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666), we conclude that the court “fulfilled its duty to conduct further inquiry to ensure that the plea was entered knowingly, voluntarily and intelligently” (People v. Dash, 74 AD3d 1859, 1860, lv denied 15 NY3d 892 [internal quotation marks omitted];  see Lopez, 71 N.Y.2d at 666).  Specifically, after the court noted that defendant appeared to have negated the element in question, defendant conferred with his attorney and thereafter admitted that he had a box cutter that was visible outside his pocket, that his hand was inches from the box cutter, and that he told the victim that he did not want to hurt her.  Those admissions are sufficient to show that defendant threatened the use of a dangerous instrument, and we therefore conclude that the court properly accepted the plea (see People v. Lawrence, 118 AD3d 1501, 1502, lv. denied 24 NY3d 1220;  see also People v. Skinner, 284 A.D.2d 906, 907;  People v. Norman, 284 A.D.2d 933, 933–934, lv. denied 96 N.Y.2d 905).

Defendant's further contention that his plea was coerced by his attorney also survives his waiver of the right to appeal, but he failed to preserve it for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction (see Dash, 74 AD3d at 1859–1860), and we conclude in any event that it is without merit.

Frances E. Cafarell

Clerk of the Court