PEOPLE v. INGRAM

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Martha Mae INGRAM, Defendant-Appellant.

Decided: July 09, 1999

PRESENT:  GREEN, J.P., HAYES, PIGOTT, JR., CALLAHAN and BALIO, JJ. John E. Tyo, Shortsville, for defendant-appellant. Brian D. Dennis, Canandaigua, for plaintiff-respondent.

 By failing to move to withdraw the guilty plea or to vacate the judgment of conviction, defendant failed to preserve for our review her challenge to the sufficiency of the plea allocution (see, People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Contrary to the contention of defendant, the plea allocution does not qualify for the rare case exception to the preservation doctrine;  her statements did not engender significant doubt with respect to her guilt or otherwise call into question the voluntariness of the plea (see, People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160, rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225;  People v. Lopez, supra, at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

 The sentencing minutes indicate that County Court imposed a determinate sentence of two years upon defendant's conviction of attempted assault in the second degree under count two of the indictment.   The certificate of conviction, however, indicates that an indeterminate sentence of 11/212 to 3 years was imposed upon that conviction.   Because of the discrepancy between the sentencing minutes and the certificate of conviction, the sentence imposed on count two must be vacated and the matter remitted to Ontario County Court for resentencing on that count (see, People v. Mohammed, 151 A.D.2d 1018, 1019, 542 N.Y.S.2d 82, lv. denied 74 N.Y.2d 815, 546 N.Y.S.2d 573, 545 N.E.2d 887;  People v. Lerner, 122 A.D.2d 813, 505 N.Y.S.2d 195, lv. denied 68 N.Y.2d 1001, 510 N.Y.S.2d 1034, 503 N.E.2d 131;  People v. Stokes, 121 A.D.2d 412, 502 N.Y.S.2d 811, lv. denied 68 N.Y.2d 760, 506 N.Y.S.2d 1048, 497 N.E.2d 718).   We reject defendant's contention that the sentence is otherwise unduly harsh or severe.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Ontario County Court for resentencing.

MEMORANDUM: