People v Devlin

People v Devlin 2006 NY Slip Op 09038 [35 AD3d 160] December 5, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent,
v
Curtis Devlin, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered June 7, 2004, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

Defendant's guilty plea was knowing, voluntary and intelligent. To the extent that, at sentencing, defendant made a perfunctory motion to withdraw his plea, he did not assert any ground for that motion, and the court properly denied it without any inquiry. Defendant's unpreserved challenge to the validity of his plea does not come within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662 [1988]), and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was nothing in the allocution to cast significant doubt on defendant's guilt (see People v Toxey, 86 NY2d 725 [1995]). Defendant's factual recitation expressly admitted the elements of attempted second-degree robbery, and the circumstances did not obligate the court to question defendant about the possibility of raising an intoxication defense.

Defendant's constitutional challenge to his sentence as a persistent violent felony offender is unpreserved and without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]; Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Andrias, J.P., Friedman, Marlow, Nardelli and Sweeny, JJ.