People v. Kellar

• Decision Date: 22 December 1995
• Citation: 222 A.D.2d 1092,636 N.Y.S.2d 698
• Parties: PEOPLE of the State of New York, Respondent, v. Douglas KELLAR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 698

636 N.Y.S.2d 698

222 A.D.2d 1092

PEOPLE of the State of New York, Respondent, v. Douglas KELLAR, Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

Dec. 22, 1995.

Linda S. Reynolds, Buffalo, for appellant.

Kevin M. Dillon, Buffalo, for respondent.

MEMORANDUM:

Upon remittitur for a de novo determination of the motion of defendant to withdraw his plea of guilty (People v. Kellar, 213 A.D.2d 1063, 624 N.Y.S.2d 712), Supreme Court denied the motion. Defendant now contends that his plea was entered under duress because his attorney misrepresented to him the crime with which he was charged and the length of the sentence he could receive. That argument is raised for the first time on appeal and is therefore unpreserved for our review (see, CPL 470.05[2] ). In any event, it lacks merit. Defendant's protestations at sentencing are not supported by the record and do not provide a basis for withdrawing the plea (see, People v. Williams, 183 A.D.2d 866, 584 N.Y.S.2d 107, lv. denied 80 N.Y.2d 911, 588 N.Y.S.2d 837, 602 N.E.2d 245; People v. Latimer, 176 A.D.2d 350, 574 N.Y.S.2d 586). The record establishes that the plea was knowingly, intelligently and voluntarily made. Thus, the court's denial of defendant's motion was a proper exercise of discretion (see, People v. Lisbon, 187 A.D.2d 457, 458, 589 N.Y.S.2d 527). Judgment unanimously affirmed. (Resubmission of Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.--Criminal Possession Weapon,...