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

443
KA 14-01662
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES D. HILLYARD, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered September 3, 2014. The judgment
convicted defendant, upon his plea of guilty, of murder in the second
degree (two counts), attempted robbery in the first degree, attempted
robbery in the second degree and criminal possession of a weapon in
the second degree (two counts).

     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 to the entire indictment charging him with,
inter alia, two counts of murder in the second degree (Penal Law
§ 125.25 [1], [3]) and one count of attempted robbery in the first
degree (§§ 110.00, 160.15 [4]), in exchange for a sentence of 20 years
to life. To the extent that defendant contends that the waiver of the
right to appeal is not valid, we reject that contention and conclude
that defendant knowingly and intelligently waived his right to appeal
(see generally People v Sanders, 25 NY3d 337, 341-342), and thus
defendant’s challenge to the factual sufficiency of the plea is
encompassed by his waiver of the right to appeal (see People v McCrea,
140 AD3d 1655, 1655, lv denied 28 NY3d 933). Moreover, defendant
failed to preserve that challenge for our review inasmuch as he failed
to move to withdraw the plea or vacate the judgment of conviction on
that ground (see People v Lopez, 71 NY2d 662, 665). In any event,
defendant’s challenge is without merit. Although defendant’s initial
statements may have negated essential elements of those crimes, i.e.,
that he lacked knowledge that his codefendants attempted to rob the
victim and that he did not intend to kill the victim, “his subsequent
statements removed any doubt” that he was aware that his codefendants
attempted to rob the victim after he was shot by defendant and that,
by firing the gun at the victim, he was intentionally causing his
                                 -2-                           443
                                                         KA 14-01662

death (People v DeMarco, 117 AD3d 1522, 1523, lv denied 23 NY3d 1061;
see People v Davoy, 142 AD3d 1301, 1302, lv denied 28 NY3d 1144).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
