         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1392
KA 10-01078
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONIQUE BOYD, DEFENDANT-APPELLANT.


LEONARD, CURLEY & WALSH PLLC, ROME (MARK C. CURLEY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered December 19, 2008. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of rape in the first degree (Penal Law §
130.35 [1]). “Although the contention of defendant that he was
coerced into pleading guilty and thus that the plea was not
voluntarily entered survives the waiver of the right to appeal,
defendant did not move to withdraw the plea or to vacate the judgment
of conviction and thus failed to preserve that contention for our
review” (People v Russell, 55 AD3d 1314, 1314-1315, lv denied 11 NY3d
930; see People v Ali, 96 NY2d 840, 841, revg 277 AD2d 138; People v
Jackson, 90 AD3d 1692, 1693, lv denied 18 NY3d 958; People v Dozier,
59 AD3d 987, 987-988, lv denied 12 NY3d 815). In any event,
defendant’s contention lacks merit. While we agree with defendant
that it would have been impermissibly coercive for County Court to
inform him that it would impose the maximum sentence if defendant
chose to go to trial rather than to enter a plea (see e.g. People v
Flinn, 60 AD3d 1304, 1305; People v Stevens, 298 AD2d 267, 268, lv
dismissed 99 NY2d 585), here the court merely informed defendant that
he could “face” 25 years in state prison were he to be convicted after
trial. We thus conclude that “the court’s statement was a proper
explanation of defendant’s sentence exposure in the event that
defendant chose not to plead guilty” (Dozier, 59 AD3d at 988; see
Jackson, 90 AD3d at 1693; People v Bravo, 72 AD3d 697, 698, lv denied
15 NY3d 747; People v Boyde, 71 AD3d 1442, 1443, lv denied 15 NY3d
                               -2-                 1392
                                              KA 10-01078

747).




Entered:   December 21, 2012         Frances E. Cafarell
                                     Clerk of the Court
