People v. Nolasco

Decision Date12 April 2017
Citation149 A.D.3d 875,49 N.Y.S.3d 917 (Mem)
Parties The PEOPLE, etc., respondent, v. Bienvenido NOLASCO, appellant.
CourtNew York Supreme Court — Appellate Division

Gerald Zuckerman, Croton–on–Hudson, N.Y., for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jennifer Spencer and Laurie G. Sapakoff of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zuckerman, J.), rendered October 2, 2014, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his plea of guilty was not voluntarily entered because the County Court refused to accept the plea when he initially refused to admit the facts underlying the crime of attempted robbery in the second degree. Contrary to the People's contention, this argument is not precluded by any valid waiver of the defendant's right to appeal, since it implicates the voluntariness of the defendant's plea (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Smith, 146 A.D.3d 904, 44 N.Y.S.3d 771 ; People v. Lovick, 127 A.D.3d 1108, 1109, 5 N.Y.S.3d 878 ). The People correctly contend, however, that since upon further inquiry into the facts by the prosecutor and inquiry by the court, the defendant readily and without hesitation admitted to the facts underlying the crime to which he pleaded and since the defendant did not challenge this remedial action, his present contention is unpreserved for appellate review (see People v. Lopez, 71 N.Y.2d at 668, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Lovick, 127 A.D.3d at 1109, 5 N.Y.S.3d 878 ; People v. Antoine, 59 A.D.3d 560, 872 N.Y.S.2d 283 ; People v. Holman, 33 A.D.3d 815, 826 N.Y.S.2d 287 ) and, in any event, without merit.

RIVERA, J.P., AUSTIN, ROMAN, HINDS–RADIX and CONNOLLY, JJ., concur.

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