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

468
KA 15-00001
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREGORY BAIRD, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered October 14, 2014. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first 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 robbery in the first degree (Penal Law § 160.15
[3]), defendant contends that his plea was not knowing and voluntary
because County Court did not conduct the requisite further inquiry
after he negated an essential element of the crime during the plea
colloquy by denying that he threatened the use of a dangerous
instrument. At the outset, we note that defendant’s contention
survives his valid waiver of the right to appeal (see People v Theall,
109 AD3d 1107, 1107-1108, lv denied 22 NY3d 1159). Nevertheless, even
assuming, arguendo, that his contention falls within the narrow
exception to the preservation requirement (see People v Lopez, 71 NY2d
662, 666), we conclude that the court “fulfilled its duty to conduct
further inquiry to ensure that the plea was entered knowingly,
voluntarily and intelligently” (People v Dash, 74 AD3d 1859, 1860, lv
denied 15 NY3d 892 [internal quotation marks omitted]; see Lopez, 71
NY2d at 666). Specifically, after the court noted that defendant
appeared to have negated the element in question, defendant conferred
with his attorney and thereafter admitted that he had a box cutter
that was visible outside his pocket, that his hand was inches from the
box cutter, and that he told the victim that he did not want to hurt
her. Those admissions are sufficient to show that defendant
threatened the use of a dangerous instrument, and we therefore
conclude that the court properly accepted the plea (see People v
Lawrence, 118 AD3d 1501, 1502, lv denied 24 NY3d 1220; see also People
v Skinner, 284 AD2d 906, 907; People v Norman, 284 AD2d 933, 933-934,
                                 -2-                           468
                                                         KA 15-00001

lv denied 96 NY2d 905).

     Defendant’s further contention that his plea was coerced by his
attorney also survives his waiver of the right to appeal, but he
failed to preserve it for our review inasmuch as he did not move to
withdraw his plea or to vacate the judgment of conviction (see Dash,
74 AD3d at 1859-1860), and we conclude in any event that it is without
merit.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
