Opinion
112178
06-29-2023
The PEOPLE of the State of New York, Respondent, v. Willis MCCALL, Appellant.
Brian M. Callahan, Albany, for appellant. P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.
Brian M. Callahan, Albany, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
McShan, J. Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered February 15, 2018, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
Defendant and another individual were charged in a six-count indictment with various crimes stemming from the theft of property from a victim by force. In satisfaction of the charges against him, defendant pleaded guilty to robbery in the first degree and waived his right to appeal. County Court thereafter sentenced defendant, pursuant to the terms of the plea agreement, to a prison term of 11 years, followed by five years of postrelease supervision. Defendant appeals.
We affirm. Initially, defendant's challenge to the factual sufficiency of the plea allocution is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion despite having had ample opportunity to do so (see People v. McNeil, 210 A.D.3d 1200, 1201, 178 N.Y.S.3d 242 [3d Dept. 2022] ; People v. Ferretti, 209 A.D.3d 1173, 1174, 177 N.Y.S.3d 379 [3d Dept. 2022] ), and the narrow exception to the preservation rule is inapplicable "as County Court did not accept the plea without further inquiry after the allocution ... cast [some] doubt upon defendant's guilt" of the charged offense ( People v. Reap, 163 A.D.3d 1287, 1288, 81 N.Y.S.3d 654 [3d Dept. 2018] [internal quotation marks, ellipsis and citations omitted], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ; see People v. Youngblood, 107 A.D.3d 1159, 1160, 967 N.Y.S.2d 215 [3d Dept. 2013], lv denied 21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013] ). In any event, notwithstanding defendant's initial statement during the plea allocution that neither he nor another participant in the crime possessed a pistol, negating a necessary element of the charged crime (see Penal Law § 160.15[4] ), County Court permitted defendant to consult further with counsel and thereafter questioned defendant again as to the underlying facts of the crime; during that ensuing allocution, defendant ultimately admitted all factual elements of the crime to which he pleaded guilty (see People v. Reap, 163 A.D.3d at 1288, 81 N.Y.S.3d 654 ; People v. Kendall, 91 A.D.3d 1191, 1193, 937 N.Y.S.2d 439 [3d Dept. 2012] ). Accordingly, under the circumstances presented, "the court made a sufficient inquiry to establish that the plea was knowingly and voluntarily entered" ( People v. Greene, 195 A.D.3d 1317, 1318, 146 N.Y.S.3d 539 [3d Dept. 2021] ; see People v. Green, 153 A.D.3d 1518, 1519, 60 N.Y.S.3d 712 [3d Dept. 2017] ; People v. Bryant, 128 A.D.3d 1223, 1224–1225, 10 N.Y.S.3d 341 [3d Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ;). "Having failed to express, in any way, dissatisfaction with the court's remedial action, defendant has waived any further challenge to the allocution" and, thus, failed to preserve his claims in this regard ( People v. Lopez, 71 N.Y.2d 662, 668, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] [citation omitted]; see People v. Greene, 195 A.D.3d at 1318, 146 N.Y.S.3d 539 ).
Defendant's further claim that his guilty plea was not knowing, voluntary and intelligent based upon County Court's failure to explicitly confirm that he had discussed with counsel the trial-related rights to be forfeited by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ) is likewise unpreserved for our review (see People v. Kimball, 213 A.D.3d 1028, 1030, 183 N.Y.S.3d 198 [3d Dept. 2023] ; People v. Nichols, 194 A.D.3d 1114, 1115, 146 N.Y.S.3d 699 [3d Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 700, 172 N.E.3d 812 [2021] ). The record nevertheless reflects that the court repeatedly confirmed that defendant had discussed the plea with counsel and thoroughly advised him of the constitutional rights to be waived by pleading guilty, and he confirmed his understanding thereof (see People v. Conceicao, 26 N.Y.3d 375, 379, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Moore, 201 A.D.3d 1209, 1211, 159 N.Y.S.3d 766 [3d Dept. 2022] ; People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [3d Dept. 2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ).
Egan Jr., J.P., Aarons, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.