People v. Cowan

Full title: The People of the State of New York, Respondent, v. Gilbert Cowan…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Feb 17, 2015

2015 N.Y. Slip Op. 50178 (N.Y. App. Term 2015)

13 N.Y.S.3d 851

Opinion

2012-1125 K CR

02-17-2015

The People of the State of New York, Respondent, v. Gilbert Cowan, Appellant.

PESCE, P.J.

PRESENT: : , SOLOMON and ELLIOT, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William Miller, J.), rendered April 4, 2012. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to endangering the welfare of a child (Penal Law § 260.10 [1]) in connection with an incident in which he invited a 12-year-old girl into the passenger seat of his car at 7:20 a.m. and closed the door.

Defendant's claim that his plea allocution was factually insufficient is unpreserved for review on direct appeal, as he did not move in the Criminal Court to withdraw his guilty plea pursuant to CPL 260.10 (1), or to vacate the judgment of conviction pursuant to CPL 440.10. The narrow exception to the preservation requirement—where the factual recitation negates an essential element of the crime pleaded to, and the plea court accepts the plea without making further inquiry to ensure that the defendant understands the nature of the charge and that the plea is intelligently entered—is inapplicable in this case (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Rampersaud, 121 AD3d 721 [2014]; People v Fisher, 119 AD3d 813 [2014]; People v Hutson, 309 AD2d 1255 [2003]; People v Brown, 34 Misc 3d 143[A], 2012 NY Slip Op 50096[U] [App Term, 9th & 10th Jud Dists 2012]). Defendant's plea allocution did not negate an essential element of endangering the welfare of a child (see People v Jamison, 107 AD3d 531 [2013]; People v Bray, 46 AD3d 1232, 1234 [2007]), nor did it cast doubt on the voluntariness of his plea.

Furthermore, the Criminal Court did not accept defendant's plea without making further inquiry to ensure that he understood the nature of the charge and that the plea was intelligently entered into. The court recognized that there was a problem, stopped the proceedings, second-called the case, and conducted two off-the-record bench conferences before accepting defendant's plea.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., and Elliot, J., concur.

Solomon, J., taking no part.

Decision Date: February 17, 2015