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

608
KA 13-00521
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DERRELL A.E., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, ESQS.,
SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered October 3, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of robbery in the second degree
(Penal Law § 160.10 [2] [b]). In appeal No. 2, defendant appeals from
an adjudication that, upon his admission to violating conditions of
probation, revoked the sentence of probation imposed on his prior
youthful offender adjudication of attempted robbery in the third
degree (§§ 110.00, 160.05) and sentenced him to a term of
imprisonment. Defendant concedes in both appeals that he failed to
preserve for our review his contention that the guilty plea and
admission, respectively, were not knowing, voluntary or intelligent
“inasmuch as [he] failed to move to withdraw [his] [plea or] admission
on that ground” or to vacate the judgment or adjudication (People v
Shaw, 118 AD3d 1461, 1461, lv denied 24 NY3d 1005; see People v
McKeon, 78 AD3d 1617, 1618, lv denied 16 NY3d 799; see generally
People v Lopez, 71 NY2d 662, 665). Contrary to defendant’s contention
in both appeals, neither case falls within the narrow exception to the
preservation requirement set forth in Lopez (71 NY2d at 666).
Finally, we conclude that the sentences in both appeals are not unduly
harsh or severe.



Entered:    May 8, 2015                            Frances E. Cafarell
                                                   Clerk of the Court
