Opinion
2012-01-5
The PEOPLE of the State of New York, Respondent, v. Kevin C. SMURPHAT, Appellant.
Brandon E. Boutelle, Public Defender, Elizabethtown, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.
Brandon E. Boutelle, Public Defender, Elizabethtown, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.
Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered January 26, 2010, convicting defendant upon his plea of guilty of the crimes of attempted sexual abuse in the first degree and endangering the welfare of a child.
Defendant was charged with subjecting a seven-year-old child to sexual contact. After waiving indictment and agreeing to be prosecuted by a superior court information, defendant pleaded guilty to one count each of attempted sexual abuse in the first degree and endangering the welfare of a child. Defendant also waived his right to appeal, both orally and in writing. Thereafter, defendant was sentenced to six months in jail and 10 years of probation. This appeal ensued.
We affirm. According to defendant, the plea allocution was deficient because, among other things, he stated therein that he did not recall whether he touched the victim or tried to get her off a swing at a playground. Notably, to the extent that this contention addresses the voluntariness of defendant's plea, it survives his waiver of the right to appeal; however, it is nonetheless unpreserved for this Court's review because defendant did not move to withdraw the plea or vacate the judgment of conviction ( see People v. Martinez, 79 A.D.3d 1378, 1378, 912 N.Y.S.2d 783 [2010], lv. denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011] ). Although defendant maintains that the issue is reviewable under the narrow exception to the preservation rule ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, [1988]; People v. Smith, 81 A.D.3d 1034, 1035, 916 N.Y.S.2d 293 [2011], lv. denied 16 N.Y.3d 899, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ), we are not persuaded. Contrary to defendant's argument, he did not give contradictory or confusing answers to County Court's questions during the allocution. In fact, defendant specifically indicated that he was not denying the charged crimes, and he made no statements that were inconsistent with his guilt or cast doubt on the elements of those crimes ( see People v. Goldstein, 12 N.Y.3d 295, 300–301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009]; People v. Martinez, 79 A.D.3d at 1378, 912 N.Y.S.2d 783). Accordingly, we find no basis to disturb defendant's convictions.
Defendant's remaining contentions, to the extent not specifically addressed above, have been examined and found to be unpersuasive.
ORDERED that the judgment is affirmed.