Opinion
2012-11057, 2013-10583
07-08-2015
The PEOPLE, etc., respondent, v. Rahim ULLAH, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Gamaliel Marrero of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Gamaliel Marrero of counsel), for respondent.
PETER B. SKELOS, J.P., MARK C. DILLON, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered November 8, 2012, convicting him of menacing a police officer and menacing in the second degree, upon his plea of guilty, and imposing sentence, and (2) a resentence of the same court imposed February 13, 2013.
ORDERED that the judgment and the resentence are affirmed.
The defendant contends that his recitation of the facts underlying his plea of guilty to menacing a police officer negated the intent element of that offense (Penal Law § 120.18 ) and that the Supreme Court's further inquiry into the facts did not cure this defect. The defendant's contention is without merit, since, upon further inquiry, he admitted to waving a machete at a police officer, and his intent to place that police officer in “reasonable fear of physical injury” can readily be inferred from this conduct and the surrounding circumstances (id.; see People v. Roach, 119 A.D.3d 1070, 989 N.Y.S.2d 530 ; see generally People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ; People v. Lovick, 127 A.D.3d 1108, 5 N.Y.S.3d 878 ).
The defendant, who was initially given an illegal, indeterminate sentence and then resentenced to a determinate term of imprisonment and a period of postrelease supervision, contends that his plea was not knowing, voluntary, or intelligent because he was not advised at the time of the plea that his sentence would include a period of postrelease supervision. The defendant's contention is unpreserved for appellate review because the defendant was made aware that he would be subject to a period of postrelease supervision at the outset of the resentencing proceeding, and nonetheless failed to move to withdraw his plea prior to the imposition of the resentence (see People v. Crowder, 24 N.Y.3d 1134, 1136–1137, 3 N.Y.S.3d 309, 26 N.E.3d 1164 ; People v. Murray, 15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877 ; People v. Brown, 107 A.D.3d 819, 966 N.Y.S.2d 675 ; People v. Borges, 103 A.D.3d 747, 748, 959 N.Y.S.2d 533 ; People v. Cohen, 82 A.D.3d 786, 917 N.Y.S.2d 907 ; see also People v. Valerio, 110 A.D.3d 1015, 973 N.Y.S.2d 349 ; cf. People v. Turner, 24 N.Y.3d 254, 258–259, 997 N.Y.S.2d 671 ; People v. McAlpin, 17 N.Y.3d 936, 938, 936 N.Y.S.2d 666, 960 N.E.2d 435 ; People v. Louree, 8 N.Y.3d 541, 545–546, 838 N.Y.S.2d 18, 869 N.E.2d 18 ). Under the circumstances of this case, we decline to reach the issue in the exercise of our interest of justice jurisdiction.