           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1327
KA 12-00814
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DANIEL J. BOYDEN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (MARIO J. GUTIERREZ OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered March 20, 2012. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree
(two counts) and obstructing governmental administration in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of, inter alia, two counts of
assault in the second degree (Penal Law § 120.05 [3]) in connection
with an altercation with deputies at the Cayuga County Jail and, in
appeal No. 2, he appeals from a judgment convicting him upon his plea
of guilty of, inter alia, robbery in the first degree (§ 160.15 [3])
in connection with his robbery of a convenience store. Defendant
pleaded guilty to all counts of the two indictments in exchange for a
sentence promise of concurrent determinate terms of imprisonment, to
be followed by a period of postrelease supervision. By failing to
move to withdraw his plea or to vacate the judgment of conviction in
each appeal, defendant failed to preserve for our review his
contention in each appeal that his plea of guilty was not voluntarily
entered (see People v Toxey, 86 NY2d 725, 726, rearg denied 86 NY2d
839; People v Theall, 109 AD3d 1107, 1107). In any event, defendant’s
contention is belied by the record of the plea proceeding in each
appeal (see People v Weakfall, 108 AD3d 1115, 1115, lv denied 21 NY3d
1078). The bargained-for sentence is not unduly harsh and severe.


Entered:    December 27, 2013                      Frances E. Cafarell
                                                   Clerk of the Court
