Opinion
664 KA 17-00155
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Jodi DOLAN, Defendant-appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, 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 her upon her plea of guilty of attempted perjury in the first degree ( Penal Law §§ 110.00, 210.15 ). By failing to move to withdraw her guilty plea or to vacate the judgment of conviction, defendant failed to preserve for our review her contention that the plea was not knowingly, intelligently, and voluntarily entered (see People v. McCullen , 162 A.D.3d 1661, 1661, 79 N.Y.S.3d 440 [4th Dept. 2018] ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement because nothing in the plea colloquy calls into question the voluntariness of the plea or casts "significant doubt" on her guilt ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see People v. Pitcher , 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352 [4th Dept. 2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ). In any event, even assuming, arguendo, that defendant's initial hesitation to enter the plea called into question the voluntariness of the plea, we conclude on the record before us that County Court fulfilled its "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" ( Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see Pitcher , 126 A.D.3d at 1472, 6 N.Y.S.3d 352 ; People v. Mitchell , 48 A.D.3d 1081, 1082, 849 N.Y.S.2d 813 [4th Dept. 2008], lv denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 [2008] ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.