Opinion
112131
02-04-2021
The PEOPLE of the State of New York, Respondent, v. Levi BROWN, Appellant.
Jonathan Rosenberg, PLLC, New York City (Jonathan Rosenberg of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Jonathan Rosenberg, PLLC, New York City (Jonathan Rosenberg of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered February 13, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.
In March 2017, defendant was indicted and charged with two counts of criminal possession of a controlled substance in the third degree. Two months later, defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree. Upon the People's motion, the two indictments were consolidated for trial, and the counts contained therein were renumbered. Defendant subsequently agreed to plead guilty to the reduced charge of attempted criminal possession of a controlled substance in the third degree (under count 1 of the consolidated indictment) with the understanding that he would receive a split sentence of six months' incarceration followed by five years of probation. The plea agreement also required defendant to waive his right to appeal. Following defendant's guilty plea, County Court imposed the agreed-upon sentence. This appeal ensued.
We affirm. Defendant's challenge to the voluntariness and/or factual sufficiency of his plea is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020] ; People v. Berkman, 184 A.D.3d 898, 898, 123 N.Y.S.3d 548 [2020] ; People v. Hatch, 165 A.D.3d 1321, 1321–1322, 82 N.Y.S.3d 744 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ). Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered, as defendant did not make any statements that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Favreau, 174 A.D.3d 1226, 1228, 105 N.Y.S.3d 721 [2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 631, 137 N.E.3d 1 [2019] ; People v. King, 166 A.D.3d 1236, 1237, 86 N.Y.S.3d 679 [2018] ). In any event, "where, as here, a defendant pleads to a lesser crime as part of a plea bargain, the court is not required to engage in a factual recitation in order to establish the elements of the crime" ( People v. Favreau, 174 A.D.3d at 1228, 105 N.Y.S.3d 721 [internal quotation marks and citation omitted]; see People v. Cook, 150 A.D.3d 1543, 1544, 52 N.Y.S.3d 680 [2017] ). Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit, and the judgment of conviction is affirmed.
Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.