PEOPLE v. SOSA (2019)

Judgment, Supreme Court, Bronx County (Robert Torres, J. at plea;  Denis Boyle, J. at sentencing), rendered June 24, 2016, convicting defendant of attempted assault in the second degree, and sentencing him to a term of one to three years, unanimously affirmed.

Defendant's challenge to his plea is unpreserved, and we decline to review it in the interest of justice.  The 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] does not apply because defendant did not say anything during the plea colloquy or sentencing proceeding that negated an element of the crime or raised the possibility of a defense (People v. Pastor, 28 N.Y.3d 1089, 1090–91, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ).

Defendant asserts that he made exculpatory statements to the police suggesting that he had a justification defense.  However, a plea court's duty to make a sua sponte inquiry is not triggered by a defendant's postarrest statements when the defendant does “not reiterate those statements at [the] plea allocution” (People v. Martorell, 88 A.D.3d 485, 486, 930 N.Y.S.2d 449 [1st Dept. 2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012] ).  Defendant further asserts that he made statements reflected in his presentence report suggesting both justification and intoxication defenses.  However, there is likewise no duty on the part of a sentencing court to inquire into such out-of-court statements (see e. g. People v. Rojas, 159 A.D.3d 468, 72 N.Y.S.3d 58 [1st Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 108, 103 N.E.3d 1255 [2018] ).  Moreover, although not required to do so, the sentencing court referred to the statements defendant made in his presentence interview and confirmed, through counsel in defendant's presence, that defendant was not moving to withdraw his plea.