Opinion
391 KA 17-00190
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Terrell DAVIS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of strangulation in the second degree ( Penal Law § 121.12 ). Defendant's contention that his plea was not knowingly, intelligently, or voluntarily entered is not preserved for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Hough , 148 A.D.3d 1671, 1671, 51 N.Y.S.3d 272 [4th Dept. 2017], lv denied 29 N.Y.3d 1081, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; People v. Brinson , 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ). Contrary to defendant's further contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988).
In any event, defendant's challenge to the plea lacks merit. While defendant raised questions at various times during the plea colloquy, Supreme Court consistently provided defendant with an opportunity to consult with defense counsel and ensured that defendant's questions were answered and that he wished to proceed with the plea. Moreover, defendant stated that he was educated, sober, and alert, and that he understood the proceedings. Indeed, there is no indication in the record "that defendant was uninformed, confused or incompetent when he entered the plea" ( People v. Nudd , 53 A.D.3d 1115, 1115, 861 N.Y.S.2d 879 [4th Dept. 2008], lv denied 11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [2008] [internal quotation marks omitted]).