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The People of the State of New York v. Anthony J. Warren

State of New York Supreme Court, Appellate Division Third Judicial Department


January 31, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANTHONY J. WARREN, APPELLANT.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered July 29, 2011, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

The opinion of the court was delivered by: Spain, J.

MEMORANDUM AND ORDER

Calendar Date: January 9, 2013

Before: Rose, J.P., Spain, Stein and McCarthy, JJ.

Defendant was charged in an indictment with attempted burglary in the second degree after he was caught trying to break into an apartment. He pleaded guilty to this charge. In accordance with the terms of the plea agreement, he was sentenced as a persistent violent felony offender to 12 years to life in prison, along with a five-year period of postrelease supervision. County Court subsequently removed the postrelease supervision provision and resentenced defendant to 12 years to life in prison to be effective as of the date of the original sentencing.

Defendant now appeals.

Defendant's sole contention is that his plea allocution was factually deficient because he never admitted to the specific act of trying to enter the dwelling unlawfully. However, defendant's challenge to the factual sufficiency of his plea is unpreserved for our review as the record fails to indicate that he moved to withdraw it or to vacate the judgment of conviction (see People v White, 96 AD3d 1299, 1300 [2012], lv denied 19 NY3d 1029 [2012]; People v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Harris, 82 AD3d 1449 [2011], lv denied 17 NY3d 953 [2011]). Therefore, the judgment must be affirmed.

Rose, J.P., Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20130131

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