PEOPLE v. SCHIFFER (2004)

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered May 7, 1999 in Albany County, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree (four counts) and attempted robbery in the first degree.

 Defendant pleaded guilty to four counts of burglary in the first degree and one count of attempted robbery in the first degree and was sentenced to concurrent prison terms of 6 to 12 years.   The charges stem from his role with two others in the entering of a City of Albany residence at around 10:00 P.M. on October 30, 1997, the display of a knife and handgun and the attack of its occupants with a baseball bat in an attempt to steal their property.   While defendant claims that this plea was neither voluntarily, knowingly, nor intelligently obtained, he has not preserved this issue for our review as he did not move to withdraw it or vacate the judgment of conviction (see e.g. People v. Pierre, 8 A.D.3d 904, 780 N.Y.S.2d 389 [2004], lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004] ).   Were we to address the issue, we would nevertheless find it meritless as the record reveals that defendant's plea was indeed knowingly, intelligently and voluntarily entered after a sufficient and detailed inquiry by Supreme Court (see e.g. People v. Russo, 8 A.D.3d 903, 778 N.Y.S.2d 734 [2004], lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 [2004] ).

 Next, contrary to defendant's contention, the record of the Wade hearing supports Supreme Court's determination that, even if the photo array presented to Albany Police Sergeant Christopher Boardman may have been impermissibly suggestive, Boardman had an independent basis for an in-court identification of defendant.   At that hearing, Boardman testified that on the evening in question, he was dispatched to a “burglary in progress” at a particular residence.   As he approached the residence, he saw a white male with light-colored hair running off the front porch carrying a gun.   Boardman testified that this individual looked directly toward him and that he was thus able to observe his face.   Boardman further established that, although it was dark outside, a porch light illuminated the area.   Given Boardman's status as a trained law enforcement officer whose presence at the scene that night was to investigate criminal activity in progress (see generally People v. Morales, 37 N.Y.2d 262, 271, 372 N.Y.S.2d 25, 333 N.E.2d 339 [1975];  People v. Parker, 257 A.D.2d 693, 684 N.Y.S.2d 300 [1999], lvs. denied 93 N.Y.2d 1015, 1024, 697 N.Y.S.2d 574, 583, 719 N.E.2d 935, 944 [1999];  People v. Hill, 147 A.D.2d 500, 501, 537 N.Y.S.2d 594 [1989];  People v. Snow, 128 A.D.2d 564, 512 N.Y.S.2d 500 [1987] ) and his unequivocal testimony that he had a full facial view of defendant on a lit porch, we are unable to conclude that Supreme Court erred in finding that an in-court identification was permissible (see People v. McMillian, 120 A.D.2d 967, 967-968, 503 N.Y.S.2d 212 [1986], lv. denied 68 N.Y.2d 758, 506 N.Y.S.2d 1046, 497 N.E.2d 716 [1986] ).

Finally, we reject defendant's claim that his sentence was unduly harsh and excessive.

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CARDONA, P.J., CREW III, PETERS and SPAIN, JJ., concur.