Opinion
1148 KA 17–00953
12-20-2019
The PEOPLE of the State of New York, Respondent, v. John A. RATHBURN, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of course of sexual conduct against a child in the first degree ( Penal Law § 130.75[1][b] ) and endangering the welfare of a child (§ 260.10[1] ). We affirm.
Defendant's challenges to the voluntariness of his plea are unpreserved for appellate review because he never moved to withdraw his plea or to vacate the judgment of conviction on that ground (see People v. Gardner, 101 A.D.3d 1634, 1634, 956 N.Y.S.2d 367 [4th Dept. 2012] ). Although defendant's initial factual allocution may have negated an essential element of course of sexual conduct against a child in the first degree, the exception to the preservation rule does not apply because the matter was adjourned, defendant consulted with his lawyer, the prosecutor conducted the requisite further inquiry, and defendant did not thereafter raise any further objections (see id. at 1634–1635, 956 N.Y.S.2d 367 ; People v. Jennings, 8 A.D.3d 1067, 1068, 778 N.Y.S.2d 399 [4th Dept. 2004], lv denied 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832 [2004] ). In any event, it is well established that defendant's "monosyllabic ... responses to questioning by County Court do not render his plea unknowing and involuntary" ( People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258 [4th Dept. 2011], lv denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011] ; see People v. VanDeViver, 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009], reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ). Moreover, defendant's assertion that his allocution failed to affirmatively establish each element of the crimes "is not a recognized ground for vacating a guilty plea" ( People v. Gulbin, 165 A.D.3d 1611, 1612, 82 N.Y.S.3d 910 [4th Dept. 2018], lv denied 32 N.Y.3d 1172, 97 N.Y.S.3d 638, 121 N.E.3d 266 [2019] ; see People v. Goldstein, 12 N.Y.3d 295, 300–301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ). Indeed, "[i]t is well established that a defendant who pleads guilty need not ‘acknowledge[ ] committing every element of the pleaded-to offense ... or provide[ ] a factual exposition for each element of the pleaded-to offense’ " ( People v. Madden, 148 A.D.3d 1576, 1578, 52 N.Y.S.3d 176 [4th Dept. 2017], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017], quoting People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ). Finally, the negotiated sentence is not unduly harsh or severe.