Opinion
470 KA 22-00354
07-28-2023
The PEOPLE of the State of New York, Respondent, v. Joshua M. SANFORD, Defendant-Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law, the plea is vacated, and the matter is remitted to Steuben County Court for further proceedings on the superior court information.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree ( Penal Law § 215.51 [b] [v] ), defendant contends that County Court erred in accepting his Alford plea (see North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ) because the record lacks the requisite strong evidence of his actual guilt (see generally Matter of Silmon v. Travis , 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ). By failing to move to withdraw the plea or vacate the judgment of conviction on that ground, defendant failed to preserve his contention for our review, and this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Crittleton , 202 A.D.3d 1488, 1488, 158 N.Y.S.3d 733 [4th Dept. 2022], lv denied 39 N.Y.3d 939, 177 N.Y.S.3d 533, 198 N.E.3d 776 [2022] ; People v. Johnson , 167 A.D.3d 1512, 1514, 89 N.Y.S.3d 505 [4th Dept. 2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019] ). We nevertheless exercise our power to review defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
During the plea allocution, defendant maintained that there was insufficient evidence that he struck the victim, i.e., the evidence relating to the physical contact element of criminal contempt in the first degree under Penal Law § 215.51 (b) (v). The court's further inquiry, however, failed to ascertain the strength of the evidence as to that element of the crime. Because the record on appeal does not contain the requisite strong evidence of defendant's guilt of criminal contempt in the first degree, we conclude that the court erred in accepting the plea (see Alford , 400 U.S. at 37, 91 S.Ct. 160 ; People v. Alexander , 97 N.Y.2d 482, 486 n 3, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002] ). We therefore reverse the judgment of conviction, vacate the plea, and remit the matter to County Court for further proceedings on the superior court information.