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The People of the State of New York v. Derrick Walton

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


December 28, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
DERRICK WALTON,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered October 20, 2010.

People v Walton

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on December 28, 2012

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.

The judgment convicted defendant, upon his plea of guilty, of robbery in the third 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 third degree (Penal Law § 160.05), defendant contends that his plea was not voluntarily, knowingly, and intelligently entered because he did not recite one of the elements of that crime, i.e., that he threatened the witness. Defendant's contention is actually a challenge to the factual sufficiency of the plea allocution, and thus that challenge is encompassed by the valid waiver of the right to appeal (see People v Peters, 59 AD3d 928, 928, lv denied 12 NY3d 820; People v Branch, 49 AD3d 1206, 1206, lv denied 10 NY3d 932; People v Wilson, 38 AD3d 1348, 1348, lv denied 9 NY3d 927).

Entered: December 28, 2012 Frances E. Cafarell Clerk of the Court

20121228

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