People v. Singleton
| Decision Date | 28 January 1985 |
| Citation | 107 A.D.2d 828,484 N.Y.S.2d 668 |
| Parties | The PEOPLE, etc., Respondent, v. Gary SINGLETON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David Pomerantz, Garden City, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Malvina Nathanson, Kew Gardens, of counsel; Dolores Kanski, Yonkers, on the brief), for respondent.
Before THOMPSON, J.P., and BRACKEN, BROWN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeals by the defendant from three judgments of the Supreme Court, Queens County, all rendered December 9, 1983, convicting him of robbery in the third degree, robbery in the second degree, and attempted robbery in the first degree, upon his pleas of guilty, and imposing sentences.
Judgments affirmed.
On these appeals, the defendant contends that his pleas of guilty should be vacated because he was not advised at the taking of the pleas of his "rights to have witnesses testify in his defense and to make People prove his guilt beyond a reasonable doubt to a unanimous jury". Having failed either to move to withdraw his plea on these grounds prior to the imposition of sentence or to vacate the judgment pursuant to CPL 440.10, the defendant has not preserved for appellate review the plea allocution's sufficiency (see CPL 470.05, subd. 2; People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Mattocks, 100 A.D.2d 944, 474 N.Y.S.2d 849; People v. Ortiz, 105 A.D.2d 809, 481 N.Y.S.2d 440 ). Moreover, were we to review this issue in the interest of justice, vacatur would not be required because the allocution satisfied the requirements of People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170.
With regard to the defendant's contention that the second felony offender statute (see Penal Law, § 70.06) is unconstitutional, we note that this issue, too, has not been preserved for our review (see People v. Oliver, 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242 People v. Cates, 104 A.D.2d 895, 480 N.Y.S.2d 512 ). In any event, this identical issue has previously been rejected (see People v. Carrisquello, 106 A.D.2d 513, 483 N.Y.S.2d 47 People v. Thompson, 105 A.D.2d 762, 481 N.Y.S.2d 414 People v. Rembert, 105 A.D.2d 717, 481 N.Y.S.2d 154 People v. Vasquez, 104 App.Div.2d 1012, 480 N.Y.S.2d 918 People v. Cates, supra ), and no reason to depart from these rulings has been proffered to us by the defendant. Similarly any claim that the sentences imposed are disproportionate to the crime for which the defendant stands convicted must be rejected under the circumstances presented herein (see United States v. Ortiz, ...
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