THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RAYMOND GAUSE ALSO KNOWN AS RAYMOND VON GAUSE DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RAYMOND V. GAUSE, ALSO KNOWN AS RAYMOND VON GAUSE, DEFENDANT–APPELLANT.

KA 11–00545

Decided: November 20, 2015

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

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 assault in the second degree (Penal Law § 120.05[2] ), defendant contends that his plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise him of all the rights he would be forfeiting upon pleading guilty (see generally Boykin v. Alabama, 395 U.S. 238, 243;  People v. Tyrell, 22 NY3d 359, 361).  By failing to move to withdraw his plea or to vacate the judgment of conviction, however, defendant failed to preserve his contention for our review (see CPL 470.05[2];  People v. Landry, _ AD3d _, _ [Oct. 9, 2015] ), and the “narrow exception” to the preservation rule does not apply here inasmuch as defendant did not say anything during the plea colloquy that cast significant doubt on his guilt, or otherwise called into question the voluntariness of his plea (People v. Lopez, 71 N.Y.2d 662, 666;  see Landry, _ AD3d at _).  As we recently noted, “[a]lthough the Court of Appeals in Tyrell vacated a guilty plea based on an unpreserved Boykin [ ] claim, the defendant in that case was sentenced immediately following his plea and thus did not have an opportunity to move to withdraw his plea” (Landry, _ AD3d at _;  see Tyrell, 22 NY3d at 364).  Here, in contrast, “defendant was sentenced more than [a] month [ ] after he entered his guilty plea[ ], thus affording him ample time to bring a motion” (Landry, _ AD3d at _).

Frances E. Cafarell

Clerk of the Court