The People of the State of New York, Respondent, v. George Diaz, Defendant-Appellant.

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

The People of the State of New York, Respondent, v. George Diaz, Defendant-Appellant.

4083

Decided: January 20, 2011

Tom, J.P., Mazzarelli, Friedman, Renwick, DeGrasse, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Jalina J. Hudson of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Marc Weber of counsel), for respondent.

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Judgment, Supreme Court, New York County (Renee A. White, J.), rendered July 21, 2009, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

Defendant did not move to withdraw his guilty plea, or make any statements at sentencing that could be construed as such a motion.   Since this case does not come within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662 [1988] ), his challenge to the plea is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   The record establishes that after weighing the evidence against him and the risks of going to trial, defendant entered a knowing, intelligent and voluntary plea, and there was nothing in his ultimate plea allocution that cast significant doubt on his guilt (see People v. Toxey, 86 N.Y.2d 725 [1995] ).   While defendant asserted his innocence earlier in the plea proceeding and at other stages of the case, the record is clear that during the actual plea allocution the court carefully elicited defendant's unequivocal admission that he punched the victim and stole his money (see People v. McNair, 13 NY3d 821 [2009] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK