People v. Velasquez
| Decision Date | 14 January 1985 |
| Citation | 484 N.Y.S.2d 84,107 A.D.2d 726 |
| Parties | The PEOPLE, etc., Respondent, v. Maria VELASQUEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David Pomerantz, Garden City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, Rosalyn H. Richter and Sholom J. Twersky, New York City, of counsel), for respondent.
Before MOLLEN, P.J., and BRACKEN, O'CONNOR and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered July 14, 1983, convicting her of manslaughter in the first degree, upon her plea of guilty, and sentencing her to an indeterminate term of imprisonment of 10 to 20 years.
Judgment affirmed.
On this appeal, the defendant contends that her plea of guilty should be vacated because she was not advised at the taking of the plea of her "rights to cross-examine the People's witnesses and to make the People prove her guilt beyond a reasonable doubt to a unanimous jury". Having failed either to move to withdraw her plea on this ground prior to the imposition of sentence or subsequent thereto pursuant to CPL 440.10, the defendant has not preserved for appellate review the sufficiency of the plea allocution (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 App.Div.2d 895, 480 N.Y.S.2d 512 ). In any event, this identical issue has previously been rejected (see 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 A.D.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 sentence imposed is disproportionate to the crime for which the defendant stands convicted must be rejected under the circumstances presented herein (see United States v. Ortiz, 742 F.2d...
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