People v. Lance R. Bishop

• Decision Date: 21 March 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Lance R. BISHOP, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1243
982 N.Y.S.2d 644
2014 N.Y. Slip Op. 01924

The PEOPLE of the State of New York, Respondent,
v.
Lance R. BISHOP, Defendant–Appellant.

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

March 21, 2014.

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.

Lance R. Bishop, Defendant–Appellant pro se.

[982 N.Y.S.2d 645]

Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, and SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20[1] ). Although the defendant's contention that his plea was not knowing, intelligent, or voluntary survives his waiver of the right to appeal, defendant failed to preserve his contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction ( see People v. Watkins, 77 A.D.3d 1403, 1403, 909 N.Y.S.2d 233,lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327). Furthermore, “[n]othing in the plea allocution raised the possibility that [a justification defense was] applicable in this case, and defendant's contention therefore does not fall within the narrow exception to the preservation rule” ( People v. Hart, 114 A.D.3d 1273, 1273, 980 N.Y.S.2d 863;cf. People v. Ponder, 34 A.D.3d 1314, 1315, 823 N.Y.S.2d 792;see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

Defendant's challenge to the alleged amendment to the indictment is similarly unavailing. Although the indictment was amended at the beginning of the plea proceeding to reflect the charge to which defendant ultimately pleaded guilty under the agreement, we conclude that County Court's reference to an incorrect Penal Law provision, while referring to the crime of manslaughter in the first degree by name, was akin to a mere “misnomer in the designation of the crime charged,” which does not create a jurisdictional defect ( People v. Rodriguez, 97 A.D.3d 246, 252, 945 N.Y.S.2d 313,lv. denied19 N.Y.3d 1028, 953 N.Y.S.2d 562, 978 N.E.2d 114). Thus, defendant's uncontested waiver of the right to appeal precludes his challenge to the court's failure to recite the applicable provision ( see People v. Cullen, 62 A.D.3d 1155, 1157, 880 N.Y.S.2d 211,lv. denied13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439) and, in any event, the court's...