PEOPLE v. HINKLE (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, attempted assault in the second degree (Penal Law §§ 110.00, 120.05[3] ).   Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution with respect to that crime (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Farnsworth, 32 A.D.3d 1176, 820 N.Y.S.2d 832, lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143;  People v. Abdallah, 23 A.D.3d 1116, 803 N.Y.S.2d 484, lv. denied 6 N.Y.3d 845, 847, 816 N.Y.S.2d 751, 753, 849 N.E.2d 974, 976), and this case does not fall within the narrow exception to the preservation rule (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  Farnsworth, 32 A.D.3d 1176, 820 N.Y.S.2d 832).   In any event, that challenge is without merit.   Defendant entered an Alford plea with respect to that crime, and “it is well settled that ‘an Alford plea ․ does not involve a recitation of 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, quoting People v. Alexander, 97 N.Y.2d 482, 487, 743 N.Y.S.2d 45, 769 N.E.2d 802).   Defendant further contends that County Court was unable to determine whether his plea was knowingly and voluntarily entered because the prosecutor failed to state on the record the evidence against him in support of both crimes to which he pleaded guilty.   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus also failed to preserve that contention for our review (see People v. Dille, 21 A.D.3d 1298, 801 N.Y.S.2d 199, lv. denied 5 N.Y.3d 882, 808 N.Y.S.2d 585, 842 N.E.2d 483;  People v. Ebert, 15 A.D.3d 781, 789 N.Y.S.2d 772).   In any event, that contention lacks merit as well.   There is the requisite “strong record evidence of defendant's guilt” of both crimes to which defendant pleaded guilty (Ebert, 15 A.D.3d at 782, 789 N.Y.S.2d 772), and the record further establishes that defendant's Alford plea was “the product of a voluntary and rational choice” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501).   We have considered defendant's remaining contention and conclude that it is without merit.

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

MEMORANDUM: