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

1230
KA 11-00545
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

RAYMOND V. GAUSE, ALSO KNOWN AS RAYMOND VON GAUSE,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen T.
Miller, A.J.), rendered January 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of assault in the second degree (Penal Law § 120.05
[2]), defendant contends that his plea was not knowingly, voluntarily,
and intelligently entered because County Court failed to advise him of
all the rights he would be forfeiting upon pleading guilty (see
generally Boykin v Alabama, 395 US 238, 243; People v Tyrell, 22 NY3d
359, 361). By failing to move to withdraw his plea or to vacate the
judgment of conviction, however, defendant failed to preserve his
contention for our review (see CPL 470.05 [2]; People v Landry, ___
AD3d ___, ___ [Oct. 9, 2015]), and the “narrow exception” to the
preservation rule does not apply here inasmuch as defendant did not
say anything during the plea colloquy that cast significant doubt on
his guilt, or otherwise called into question the voluntariness of his
plea (People v Lopez, 71 NY2d 662, 666; see Landry, ___ AD3d at ___).
As we recently noted, “[a]lthough the Court of Appeals in Tyrell
vacated a guilty plea based on an unpreserved Boykin[] claim, the
defendant in that case was sentenced immediately following his plea
and thus did not have an opportunity to move to withdraw his plea”
(Landry, ___ AD3d at ___; see Tyrell, 22 NY3d at 364). Here, in
contrast, “defendant was sentenced more than [a] month[] after he
entered his guilty plea[], thus affording him ample time to bring a
                                 -2-                 1230
                                                KA 11-00545

motion” (Landry, ___ AD3d at ___).




Entered:   November 20, 2015           Frances E. Cafarell
                                       Clerk of the Court
