PEOPLE v. DAVIS (2024)

Judgment, Supreme Court, New York County (Ellen Biben, J. at plea;  Ann E. Scherzer, J. at sentencing), rendered May 2, 2018, convicting defendant of assault in the second degree, and sentencing her to concurrent terms of 30 days in jail and five years of probation, unanimously affirmed.

Defendant's challenge to her plea is unpreserved (see People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]), and we decline to review it in the interest of justice.  Defendant had a practical ability to raise her claim by moving to withdraw the plea before sentencing, but she did not, and thus the narrow exception to the preservation requirement does not apply (see id. at 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199).

As an alternative holding, we find that the plea was voluntary (see People v. Dor, 160 A.D.3d 547, 547, 71 N.Y.S.3d 881 [1st Dept. 2018], lv denied 32 N.Y.3d 936, 84 N.Y.S.3d 863, 109 N.E.3d 1163 [2018]).  The court did not coerce defendant into pleading guilty by advising her that the plea offer would not remain available if she proceeded to hearing or trial.  The court also did not threaten defendant with the maximum sentence.  The court merely explained the sentencing exposure, which also included an accurate discussion of the discretionary minimum sentence.  The bargain was favorable in light of the sufficient evidence of physical injury to the victim.  Furthermore, at sentencing, defendant reiterated that she was giving up her right to any justification defense at sentencing, which was likely not viable, and that she had an opportunity to discuss her plea with defense counsel.