Opinion
06-30-2016
The PEOPLE of the State of New York, Respondent, v. Robert A. HORTON, Appellant.
Norbert A. Higgins, Binghamton, for appellant, and appellant pro se. Weeden A. Wetmore, District Attorney, Elmira (Sophie M. Marmor of counsel), for respondent.
Norbert A. Higgins, Binghamton, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Sophie M. Marmor of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, MULVEY and AARONS, JJ.
Opinion
PETERS, P.J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered February 3, 2014, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree.
Defendant pleaded guilty to a single-count indictment charging him with grand larceny in the third degree, a class D felony (see Penal Law § 155.35 ). In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 2 to 4 years in prison. He now appeals.
Defendant's challenge to the voluntariness of his guilty plea has not been preserved for our review as the record does not indicate that he made an appropriate postallocution motion to withdraw his plea (see People v. Buck, 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ; People v. Garry, 133 A.D.3d 1039, 1039, 19 N.Y.S.3d 192 [2015] ). Moreover, a review of the plea colloquy fails to disclose that defendant made statements that negated his guilt so as to trigger the exception to the preservation requirement (see People v. Sawyer, 135 A.D.3d 1164, 1665, 22 N.Y.S.3d 711 [2016], lv. denied 27 N.Y.3d 1006, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Garry, 133 A.D.3d at 1040, 19 N.Y.S.3d 192 ). Defendant contends in his pro se brief that his attorney was ineffective because he failed to advise him of a potential affirmative defense and that this omission influenced his decision to plead guilty. To the extent that this claim implicates the voluntariness of defendant's guilty plea, it is also not preserved for our review due to the absence of an appropriate postallocution motion (see People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [2015]; People v. Griffin, 134 A.D.3d 1228, 1230, 20 N.Y.S.3d 738 [2015] ). Furthermore, we reject defendant's challenge to the severity of his sentence as he received the minimum legally permissible sentence for a second felony offender convicted of a class D felony (see Penal Law § 70.06[3][d] ; [4][b]; People v. Iadicicco, 100 A.D.3d 1147, 1147, 953 N.Y.S.2d 904 [2012] ; People v. Vasquez, 71 A.D.3d 1179, 1181, 896 N.Y.S.2d 239 [2010], lv. denied 14 N.Y.3d 894, 903 N.Y.S.2d 782, 929 N.E.2d 1017 [2010] ).
ORDERED that the judgment is affirmed.
GARRY, ROSE, MULVEY and AARONS, JJ., concur.