Opinion
08-03-2016
The PEOPLE, etc., respondent, v. Kevin ELLIS, Jr., appellant.
Clinton W. Calhoun III, White Plains, NY, for appellant. James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff and John Collins of counsel), for respondent.
Clinton W. Calhoun III, White Plains, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff and John Collins of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the County Court, Westchester County (Minihan, J.), rendered June 23, 2015, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his current challenge to the validity of his plea of guilty, as he failed to move to withdraw his plea or to otherwise raise the issue before the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938 ; People v. Axel M., 122 A.D.3d 946, 946–947, 998 N.Y.S.2d 93 ). Moreover, contrary to the defendant's contention, this matter does not fall within the narrow exception to the preservation rule set forth in People v. Lopez (71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), since the defendant knowingly and voluntarily allocuted to the facts constituting the crime while under oath at the plea proceeding, and nothing in the defendant's factual recitation cast doubt upon his guilt, negated an essential element of the crime, or called into question the voluntariness of his plea (see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 ; People v. Pollidore, 123 A.D.3d 1058, 1059, 997 N.Y.S.2d 752 ; People v. Gomez, 114 A.D.3d 701, 701–702, 979 N.Y.S.2d 828 ; People v. Kelly, 50 A.D.3d 921, 854 N.Y.S.2d 674 ). Furthermore, contrary to the defendant's further contention, the postplea statement attributed to the defendant in the presentence report did not obligate the sentencing court to conduct a sua sponte inquiry into the validity of the defendant's plea of guilty (see People v. Garcia–Cruz, 138 A.D.3d 1414, 30 N.Y.S.3d 427 ; People v. Bryan, 129 A.D.3d 524, 10 N.Y.S.3d 428 ; People v. Pollidore, 123 A.D.3d at 1059, 997 N.Y.S.2d 752 ; People v. Appling, 94 A.D.3d 1135, 1136, 942 N.Y.S.2d 617 ; People v. Taylor, 60 A.D.3d 708, 709, 874 N.Y.S.2d 531 ).
The defendant's contention that he was denied the effective assistance of counsel is similarly without merit (see People v. Pollidore, 123 A.D.3d at 1059, 997 N.Y.S.2d 752 ), as the record demonstrates that he received meaningful representation at his plea and sentencing (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Solis, 111 A.D.3d 654, 656, 974 N.Y.S.2d 132 ).
MASTRO, J.P., HALL, SGROI and BARROS, JJ., concur.