PEOPLE v. HEAD (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered May 17, 2021, convicting defendant upon his plea of guilty of the crime of assault in the first degree.

Defendant was charged in a three-count indictment with attempted murder in the second degree, robbery in the first degree and assault in the first degree stemming from defendant stabbing the victim several times and forcibly stealing property.  Defendant ultimately pleaded guilty to assault in the first degree in satisfaction of the indictment.  Consistent with the terms of the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of 10 years, followed by five years of postrelease supervision.  Defendant appeals.

Initially, defendant's various challenges to the voluntariness of his plea are not preserved for our review as the record does not reflect that an appropriate postallocution motion was made despite an opportunity to do so (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Vazquez, 222 A.D.3d 1104, 1105, 201 N.Y.S.3d 766 [3d Dept. 2023];  People v. McQuilla, 210 A.D.3d 1191, 1191–1192, 178 N.Y.S.3d 264 [3d Dept. 2022]), and, notwithstanding defendant's contention to the contrary, we are unpersuaded that the narrow exception to the preservation requirement is implicated here (see People v. Stevens, 217 A.D.3d 1280, 1280, 191 N.Y.S.3d 835 [3d Dept. 2023], lv denied 40 N.Y.3d 952, 195 N.Y.S.3d 679, 217 N.E.3d 700 [2023]).  Although the initial attempt to complete a plea allocution was halted, and the matter was adjourned and placed on the trial calendar due to defendant making statements that negated an element of the crime or raised potential defenses during the plea colloquy, at the next court appearance, defendant assured County Court that he had conferred with counsel, understood the potential defenses and wished to accept the plea offer.  The court then engaged in a detailed colloquy wherein it discussed the rights and potential defenses that defendant was forfeiting, which defendant affirmed he understood.  Defendant then pleaded guilty to assault in the first degree, which the record reflects was entered without defendant making any statements suggestive of innocence or involuntariness (see People v. Squitieri, 60 A.D.3d 1208, 1209, 875 N.Y.S.2d 619 [3d Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009]).

Defendant's further claim that he received the ineffective assistance of counsel, to the extent that it impacts the voluntariness of the plea, is likewise unpreserved as the record does not reflect any postallocution motion on this ground and, as noted previously, the exception to the preservation requirement is inapplicable (see People v. Atkins, 222 A.D.3d 1043, 1044, 201 N.Y.S.3d 560 [3d Dept. 2023];  People v. Dunbar, 218 A.D.3d 931, 933, 193 N.Y.S.3d 397 [3d Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023]).  To the extent that defendant asserts that he did not expressly waive his right to appear in person at sentencing, this issue is also unpreserved (see People v. Bonilla, 219 A.D.3d 1094, 1095, 196 N.Y.S.3d 579 [3d Dept. 2023], lv denied 40 N.Y.3d 1038, 200 N.Y.S.3d 776, 223 N.E.3d 1252 [2023]).  Finally, upon our review of the record and considering all of the relevant circumstances, we do not find the sentence imposed to be harsh or severe (see CPL 470.15[6][b]).

ORDERED that the judgment is affirmed.

Clark, J.P.

Lynch, Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.