THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMES HILLYARD JR DEFENDANT APPELLANT

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMES D. HILLYARD, JR., DEFENDANT–APPELLANT.

KA 14–01662

Decided: April 28, 2017

PRESENT:  WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. PIXLEY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty to the entire indictment charging him with, inter alia, two counts of murder in the second degree (Penal Law

§ 125.25 [1], [3] ) and one count of attempted robbery in the first degree (§§ 110.00, 160.15[4] ), in exchange for a sentence of 20 years to life.  To the extent that defendant contends that the waiver of the right to appeal is not valid, we reject that contention and conclude that defendant knowingly and intelligently waived his right to appeal (see generally People v. Sanders, 25 NY3d 337, 341–342), and thus defendant's challenge to the factual sufficiency of the plea is encompassed by his waiver of the right to appeal (see People v. McCrea, 140 AD3d 1655, 1655, lv denied 28 NY3d 933).  Moreover, defendant failed to preserve that challenge for our review inasmuch as he failed to move to withdraw the plea or vacate the judgment of conviction on that ground (see People v. Lopez, 71 N.Y.2d 662, 665).  In any event, defendant's challenge is without merit.  Although defendant's initial statements may have negated essential elements of those crimes, i.e., that he lacked knowledge that his codefendants attempted to rob the victim and that he did not intend to kill the victim, “his subsequent statements removed any doubt” that he was aware that his codefendants attempted to rob the victim after he was shot by defendant and that, by firing the gun at the victim, he was intentionally causing his death (People v. DeMarco, 117 AD3d 1522, 1523, lv denied 23 NY3d 1061;  see People v. Davoy, 142 AD3d 1301, 1302, lv denied 28 NY3d 1144).

Frances E. Cafarell

Clerk of the Court