Opinion
04-06-2016
The PEOPLE, etc., respondent, v. Porfirio M. BAUTISTA, appellant.
Philip H. Schnabel, Chester, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Steven E. Goldberg and Andrew R. Kass of counsel), for respondent.
Philip H. Schnabel, Chester, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Steven E. Goldberg and Andrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered September 6, 2012, convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made because he was confused and did not understand what he was doing is unpreserved for appellate review, since he did not move to withdraw his plea of guilty (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Ross, 52 A.D.3d 624, 861 N.Y.S.2d 69 ; People v. Rodriguez, 51 A.D.3d 1043, 1044, 857 N.Y.S.2d 912 ; People v. Scott, 39 A.D.3d 570, 834 N.Y.S.2d 226 ). Moreover, contrary to the defendant's contention, this is not that "rare case" where the plea colloquy itself clearly casts significant doubt on the defendant's guilt or otherwise calls into question the voluntariness of the plea (People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Jerome, 110 A.D.3d 739, 740, 972 N.Y.S.2d 102 ; People v. Rojas, 74 A.D.3d 1369, 1369, 903 N.Y.S.2d 258 ). In any event, the defendant's contention is belied by his statements during the plea proceeding, in which he acknowledged under oath that he had not taken any drugs, alcohol, or other substance that would cause him not to think clearly, that he had a clear head and knew what he was doing, and that he had enough time to speak to his attorney (see People v. Innocent, 132 A.D.3d 696, 697, 17 N.Y.S.3d 505 ; People v. Shorter, 106 A.D.3d 1115, 966 N.Y.S.2d 184 ; People v. Douglas, 83 A.D.3d 1092, 1093, 921 N.Y.S.2d 324 ).
Furthermore, the defendant's contention that his plea of guilty was not voluntarily entered because he was not advised at the plea of the mandatory surcharges is without merit (see People v. Hoti, 12 N.Y.3d 742, 743, 878 N.Y.S.2d 645, 906 N.E.2d 373 ; People v. Guerrero, 12 N.Y.3d 45, 48–49, 876 N.Y.S.2d 687, 904 N.E.2d 823 ; People v. Cooks, 107 A.D.3d 734, 735, 966 N.Y.S.2d 211 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., DILLON, CHAMBERS and DICKERSON, JJ., concur.