Opinion
2012-12-6
The PEOPLE of the State of New York, Respondent, v. Neftali PEREZ, Appellant.
Pamela A. Fairbanks, Ithaca, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Pamela A. Fairbanks, Ithaca, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered October 8, 2010, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
In satisfaction of a six-count indictment, defendant, with the aid of a sworn Spanish interpreter, pleaded guilty to one count of assault in the first degree for stabbing another inmate. Pursuant to the plea agreement, defendant was thereafter sentenced as a second violent felony offender to a prison term of 12 years followed by five years of postrelease supervision, with that sentence to be served consecutively to the term he was then serving. This appeal ensued.
We affirm. Initially, inasmuch as the record before us does not indicate that defendant moved to withdraw his plea or sought to vacate the judgment of conviction, “he has failed to preserve his challenge to the sufficiency of the plea allocution premised on County Court's alleged failure to make an adequate inquiry concerning his claim of self-defense” ( People v. Simpson, 19 A.D.3d 945, 945, 797 N.Y.S.2d 322 [2005];see People v. Richardson, 275 A.D.2d 864, 865, 714 N.Y.S.2d 140 [2000],lv. denied95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000] ) and his claim that he was denied the effective assistance of counsel ( see People v. Gomez, 72 A.D.3d 1337, 1337, 899 N.Y.S.2d 435 [2010] ). Moreover, the narrow exception to the preservation requirement is not applicable here because, even assuming that defendant's remarks raised a legitimate claim of self-defense, the court satisfied its duty of further inquiry ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];People v. Simpson, 19 A.D.3d at 945, 797 N.Y.S.2d 322 [2005];People v. Moore, 270 A.D.2d 715, 716, 705 N.Y.S.2d 425 [2000],lv. denied95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240 [2000] ). The court specifically questioned defendant about his right to raise the claim of self-defense and confirmed that defendant had already discussed a possible claim of self-defense with his counsel. The record amply supports the conclusion that defendant fully understood the nature of the charge and waived any claim of self-defense in exchange for the favorable plea agreement ( see People v. Rush, 79 A.D.3d 1522, 1523, 914 N.Y.S.2d 349 [2010],lv. denied16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188 [2011] ). Accordingly, defendant has presented no basis for reversal herein.
Defendant's remaining arguments have been reviewed and found to be unpersuasive.
ORDERED that the judgment is affirmed.