PEOPLE v. HARMON (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10 [1] ) arising from an incident where defendant repeatedly stabbed the victim after an argument during which the victim spat in his face.  Defendant contends that his plea was not knowingly, voluntarily and intelligently entered because Supreme Court should have confirmed that defendant was aware of and waiving any potential defenses based on his mental health and mental state at the time of the crime.  Defendant failed to move to withdraw the plea or to vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (see People v. Briggs, 115 A.D.3d 1245, 1246, 982 N.Y.S.2d 275 [4th Dept. 2014], lv denied 23 N.Y.3d 1018, 992 N.Y.S.2d 801, 16 N.E.3d 1281 [2014] ).  This case does not fall within the rare exception to the preservation rule set forth in People v. Lopez ( 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  To the extent that defendant contends that his statement during the plea colloquy that he “lost it” before stabbing the victim casts significant doubt upon his guilt, the record shows that the court conducted a further inquiry to ensure that defendant's plea was knowing and voluntary, i.e., the court ensured that defendant knew what he was doing at the time, that he was aware that he had possession of the knife, and that he intentionally stabbed the victim  (see Briggs, 115 A.D.3d at 1246, 982 N.Y.S.2d 275).  To the extent that defendant relies on defense counsel's comments at sentencing regarding defendant's mental health, we conclude that the court had no duty to conduct a further inquiry based on those comments (see People v. Vogt, 150 A.D.3d 1704, 1705, 54 N.Y.S.3d 259 [4th Dept. 2017] ).

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed (see People v. Haywood, 203 A.D.2d 966, 966, 612 N.Y.S.2d 1016 [4th Dept. 1994], lv denied 83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760 [1994] ), and the judgment is affirmed.

Memorandum: