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

167
KA 12-01098
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

IKIKO K. BROWN, DEFENDANT-APPELLANT.


LESLIE R. LEWIS, NEW HARTFORD (PETER DIGIORGIO, JR., 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 November 24, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree
(two counts).

     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 two counts of robbery in the first degree (Penal
Law § 160.15 [1], [2]), defendant contends that his plea to count one
of the indictment was involuntarily entered because County Court,
during the plea colloquy, misstated the law regarding accomplice
liability. We note, however, that the alleged misstatement was made
after defendant pleaded guilty and thus could not have rendered
defendant’s plea involuntary. In any event, because defendant did not
move to withdraw his plea or to vacate the judgment of conviction on
that ground, defendant’s challenge to the voluntariness of his plea is
unpreserved for our review (see People v Bloom, 96 AD3d 1406, 1406, lv
denied 19 NY3d 1024).

     Defendant further challenges the voluntariness of the plea on the
ground that he made a statement during the plea colloquy that negated
an element of the crime, thus rendering applicable the exception to
the preservation rule in People v Lopez (71 NY2d 662, 666). We reject
that contention. Defendant stated that he was in police custody when
his codefendant, in an attempt to flee following the robbery, shot a
deputy sheriff in the foot and thereby caused him serious physical
injury. According to defendant, his statement about being in custody
negated an element of robbery in the first degree under Penal Law §
160.15 (1), as charged in count one, which provides that a person is
guilty of that crime when “he forcibly steals property and when, in
                                 -2-                           167
                                                         KA 12-01098

the course of the commission of the crime or of immediate flight
therefrom, he or another participant in the crime . . . [c]auses
serious physical injury to any person who is not a participant in the
crime” (emphasis added).

     The exception to the preservation rule set forth in Lopez permits
review when the “factual recitation negates an essential element of
the crime pleaded to” and the court fails to make a “further inquiry
to ensure that defendant understands the nature of the charge” (id. at
666). Here, although defendant’s statement about being in custody may
have raised an issue of fact whether the codefendant caused serious
injury to the deputy during the immediate flight from the robbery (see
People v Irby, 47 NY2d 894, 895), it did not negate an element of the
crime. In any event, after defendant made that statement, the court
inquired further of defendant, who admitted that the shooting took
place during the immediate flight from the robbery. We thus conclude
that defendant’s factual recitation, when viewed in its entirety, did
not negate an essential element of the crime charged under count one
of the indictment.

     Finally, defendant contends that his sentence—an aggregate term
of 30 years’ imprisonment plus five years of postrelease
supervision—is unduly harsh and severe considering that he has a
minimal prior record (one misdemeanor, for which he was sentenced to
community service), his participation in the crimes was limited to
being the getaway driver, and, unlike his codefendant, he immediately
surrendered to the police and accepted responsibility for his
wrongdoing. Because defendant waived his right to appeal, however, he
is precluded from asking us to modify his sentence as a matter of
discretion in the interest of justice (see People v Lopez, 6 NY3d 248,
256; People v Suttles, 107 AD3d 1467, 1468, lv denied 21 NY3d 1046).
We reject defendant’s contention that his waiver of the right to
appeal does not encompass his challenge to the severity of his
sentence because the court failed to inform him of the maximum
sentence he could receive. “ ‘[T]he requirement that a defendant be
apprised of [the] maximum sentence in order for a waiver [of the right
to appeal] to be valid does not apply in a situation such as this
where there is a specific sentence promise at the time of the
waiver’ ” (People v Semple, 23 AD3d 1058, 1059, lv denied 6 NY3d 852;
cf. People v Hidalgo, 91 NY2d 733, 737). We note that the certificate
of conviction incorrectly recites that defendant was convicted of two
counts of robbery in the first degree under Penal Law § 165.15 (1),
and it must therefore be amended to reflect that he was convicted of
one count under that subdivision and one count under Penal Law §
165.15 (2) (see generally People v Saxton, 32 AD3d 1286, 1286-1287).




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
