People v. Rivera

Feb 1, 2008
Versions:48 A.D.3d 1092
850 N.Y.S.2d 782

The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree, criminal contempt in the first degree and criminal possession of stolen property in the fifth degree.

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

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of, inter alia, burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that County Court erred in accepting his Alford plea because the evidence that the People intended to offer at trial, placed on the record by the People, was inadequate to support the “intent to commit a crime therein” element of burglary (§ 140.25; see generally People v Lewis, 5 NY3d 546, 551-552 [2005]). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve that contention for our review (see CPL 470.05 [2]; People v Burgos, 291 AD2d 904 [2002], lv denied 97 NY2d 751 [2002]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Martoche, J.P., Centra, Lunn, Green and Gorski, JJ.