Opinion
05-02-2024
The PEOPLE of the State of New York, Respondent, v. Marie VASQUEZ, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Danielle A. Bernstein of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Danielle A. Bernstein of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Webber, J.P., Oing, Rodriguez, Higgitt, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered April 16, 2019, convicting defendant, upon her plea of guilty, of assault in the second degree (two counts), attempted assault in the second degree, and criminal mischief in the third degree, and sentencing her to concurrent terms of one day on each of the assault counts and five years’ probation on all counts, unanimously affirmed.
Defendant’s challenge to the voluntariness of her plea is unpreserved, and we decline to review it in the interest of justice. 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]) does not apply, because "[d]efendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a … defense" (People v. Pastor, 28 N.Y.3d 1089, 1090-1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016]). Defendant contends that she made statements that raised a justification defense when she was being interviewed in connection with a presentence report. Such an interview, however, is not part of the sentencing proceeding, and the Lopez exception does not apply to statements in presentence reports (see People v. Grant, 203 A.D.3d 477, 477–178, 160 N.Y.S.3d 862 [1st Dept. 2022], lv denied 38 N.Y.3d 1033, 169 N.Y.S.3d 237, 189 N.E.3d 344 [2022]; People v. Rojas, 159 A.D.3d 468, 468, 72 N.Y.S.3d 58 [1st Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 108, 103 N.E.3d 1255 [2018]). As an alternative holding, we find that nothing in the record casts doubt on the voluntariness of the plea.