PEOPLE v. CLARKE (2021)

Judgment of conviction (Michael Gaffey, J., at plea and sentencing; Angela J. Badamo, J., at resentencing), rendered July 12, 2019, affirmed.

Defendant's contention that his guilty plea was not knowing, intelligent and voluntary because the plea court failed to inquire into whether he was under the influence of drugs or alcohol at the time of the plea is unpreserved for our review, since he failed to raise the issue prior to sentencing (see CPL 440.10; People v. Lopez, 71 NY2d 662, 665-666 [1988]; People v. Buie, 128 AD3d 1281 [2015]). The narrow exception to the preservation rule is not applicable because nothing in the record casts significant doubt on the knowing or voluntary nature of defendant's guilty plea (see People v. Diaz, 112 AD3d 423 [2013], lv denied 23 NY3d 1036 [2014]).

As an alternative holding, we reject defendant's contention on the merits. In full satisfaction of a criminal complaint charging three Class A misdemeanors, defendant pled guilty to the added charge of disorderly conduct, a violation, in exchange for a conditional discharge, the conditions being that he stay out of trouble for one year and not get rearrested, and complete a substance abuse treatment program, with a jail alternative if he failed to comply. Defendant personally confirmed that he was pleading guilty freely and voluntarily, that he had enough time to speak to his attorney and that he understood that he was giving up his right to a trial, to question the People's witnesses and to testify on his own behalf. Thus, the record establishes that defendant entered his plea knowingly, intelligently and voluntarily (see People v. Conceicao, 26 NY3d 375, 382-383 [2015]) and there was nothing in the record to suggest that defendant's ability to make a decision to enter a valid plea was impaired in any way by drugs or alcohol, and defendant's assertions in this regard rest on speculation (see People v. Rodriguez, 83 AD3d 449 [2011], lv denied 17 NY3d 800 [2011]; People v. Royster, 40 AD3d 885 [2007], lv denied 9 NY3d 881 [2007]).

In any event, the only relief defendant requests is a dismissal of the accusatory instrument, and he expressly requests that this Court affirm his conviction if it does not grant a dismissal. Since dismissal is not warranted, we affirm on that basis as well (see People v. Conceicao, 26 NY3d at 385 n).

Per Curiam.

All concur