Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Gregory J. VOGT, Defendant–Appellant.
Law Offices of Matthew J. Rich, P.C., Rochester (Matthew J. Rich of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Law Offices of Matthew J. Rich, P.C., Rochester (Matthew J. Rich of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[2] ). Defendant's contention that his plea was not knowingly, voluntarily and intelligently entered is not preserved for our review because defendant "did not move to withdraw the plea or to vacate the judgment of conviction" (People v. Laney, 117 A.D.3d 1481, 1482, 984 N.Y.S.2d 727 ), but we agree with defendant that his recitation of the facts underlying the charge cast significant doubt upon his guilt insofar as it negated the element of intent, and thus this case "falls within the narrow exception to the preservation requirement" (People v. Bertollini [appeal No. 2], 141 A.D.3d 1163, 1164, 37 N.Y.S.3d 649 ). Nevertheless, we affirm, inasmuch as County Court conducted the requisite inquiry to ensure that defendant's plea was knowing and voluntary (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Here, while defendant's initial statements regarding his intent to injure the victim " ‘trigger[ed] the trial court's duty to conduct a further inquiry to ensure that defendant's plea was knowingly and voluntarily made’ " (People v. Bonacci, 119 A.D.3d 1348, 1349, 988 N.Y.S.2d 391, lv. denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155, quoting People v. McNair, 13 N.Y.3d 821, 822–823, 892 N.Y.S.2d 822, 920 N.E.2d 929 ), we conclude that the court "properly conducted such an inquiry and that ‘defendant's responses to the court's subsequent questions removed [any] doubt about [his] guilt’ " (id.;see People v. Ocasio , 265 A.D.2d 675, 677–678, 697 N.Y.S.2d 368 ). Contrary to defendant's further contention, the court had no duty to engage in an additional inquiry regarding a possible justification defense. " ‘[N]othing [defendant] said [during the plea colloquy] raised the possibility of a viable justification defense’ " (People v. Manor, 121 A.D.3d 1581, 1582, 993 N.Y.S.2d 424, affd. 27 N.Y.3d 1012, 35 N.Y.S.3d 272, 54 N.E.3d 1143 ; see People v. Wilson, 107 A.D.3d 532, 532, 966 N.Y.S.2d 670, lv. denied 22 N.Y.3d 1160, 984 N.Y.S.2d 644, 7 N.E.3d 1132, reconsideration denied 23 N.Y.3d 1069, 994 N.Y.S.2d 328, 18 N.E.3d 1149 ; cf. People v. Ponder, 34 A.D.3d 1314, 1315, 823 N.Y.S.2d 792 ), and the court "had no duty to conduct an inquiry concerning the potential defense of [justification] based upon comments made by defendant during the ... sentencing proceeding" (People v. Phillips, 30 A.D.3d 911, 911, 819 N.Y.S.2d 129, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.