PEOPLE v. McGRAIL (2007)

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree (Penal Law § 130.50[3] ).   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).   To the extent that defendant contends that the allocution was factually insufficient because he specifically did not waive an intoxication defense, we note that “the record of the plea proceeding establishes that, when defendant raised a possible intoxication defense, County Court fulfilled its duty to conduct further inquiry to ensure that the plea was entered knowingly, voluntarily and intelligently” (People v. Zodarecky, 15 A.D.3d 861, 862, 789 N.Y.S.2d 594;  see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Hunter, 281 A.D.2d 964, 722 N.Y.S.2d 444, lv. denied 96 N.Y.2d 902, 730 N.Y.S.2d 800, 756 N.E.2d 88;  see also People v. Howard, 234 A.D.2d 1000, 1001, 652 N.Y.S.2d 450, lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 867, 681 N.E.2d 1314).  “Here, the record establishes that defendant's Alford plea was ‘the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt’ ” (People v. Smith, 26 A.D.3d 746, 747, 807 N.Y.S.2d 897, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: