People v Shondell Butler

People v Butler 2003 NY Slip Op 20268 [2 AD3d 1459] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Shondell Butler, Appellant. (Appeal No. 2.)

—Appeal from a judgment of Onondaga County Court (Walsh, J.), entered October 23, 2002, convicting defendant upon his plea of guilty of arson in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant has failed to preserve for our review his contention that his plea was coerced (see People v Newman [appeal No. 1], 231 AD2d 875 [1996], lv denied 89 NY2d 944 [1997]; see also CPL 470.05 [2]; People v Akridge, 253 AD2d 727 [1998], lv denied 92 NY2d 1027 [1998]; see generally People v Lopez, 71 NY2d 662, 665 [1988]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Because we are affirming the judgment in appeal No. 1, "there is no merit to defendant's contention that the plea on the indictment in appeal No. 2 should be vacated pursuant to People v Fuggazzatto (62 NY2d 862, 863 [1984])" (People v Van Every, 1 AD3d 977, 979 [2003]; see People v Cato, 306 AD2d 914 [2003]). Present—Pine, J.P., Wisner, Hurlbutt, Kehoe and Hayes, JJ.