PEOPLE v. MARTIN (2008)

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[1] ).   Defendant did not move to withdraw his plea or to vacate the judgment of conviction and thus has failed to preserve for our review his contentions that the plea was not knowingly or voluntarily entered (People v. Carmody, 53 A.D.3d 1048, 861 N.Y.S.2d 548;  People v. Grimes, 53 A.D.3d 1055, 860 N.Y.S.2d 723), or that the plea allocution was factually insufficient (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).   This case does not fall within the rare exception to the preservation requirement (see id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   In any event, defendant's contention that the plea was not knowingly or voluntarily entered lacks merit inasmuch as the record establishes that County Court never promised defendant that he would be enrolled in the Comprehensive Alcohol and Substance Abuse Treatment (CASAT) program in the event that he pleaded guilty.   In addition, the plea allocution was factually sufficient because there is no requirement that a defendant recite the underlying facts of the crime to which he or she is pleading guilty (see People v. Bailey, 49 A.D.3d 1258, 852 N.Y.S.2d 892;  People v. Bagley, 34 A.D.3d 992, 824 N.Y.S.2d 457, lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620).

Contrary to the further contention of defendant, the court properly refused to suppress his oral and written statements to the police.   The record of the suppression hearing supports the court's determination that defendant was not in custody when he was questioned by the police officers at his girlfriend's house, and thus Miranda warnings were not required at that time (see People v. Towsley, 53 A.D.3d 1083, 862 N.Y.S.2d 236;  People v. Flecha, 43 A.D.3d 1385, 1385-1386, 842 N.Y.S.2d 656, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024).

To the extent that the contention of defendant that he was denied his right to effective assistance of counsel is not forfeited by the plea (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Defense counsel did not misinform defendant in suggesting to him that he may be eligible for participation in the CASAT program (see 7 NYCRR 1900.4[c][1] [iii] ).

Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: