PEOPLE v. GRAY (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered March 9, 2015, convicting defendant upon his plea of guilty of the crime of robbery in the third degree.

Defendant pleaded guilty to a single-count indictment charging him with robbery in the third degree.  He was sentenced as a second felony offender, in accordance with the plea agreement, to a prison term of 2 to 4 years.  Defendant appeals.

Defendant's challenges to the sufficiency and voluntariness of the plea are unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Bailey, 158 A.D.3d 948, 948, 71 N.Y.S.3d 667 [2018] ).  Further, the narrow exception to the preservation requirement is inapplicable as the record fails to reflect any statement during the plea colloquy that negated an element of the offense or otherwise called into question the voluntariness of the plea so as to trigger further inquiry by County Court (see People v. Depugh, 158 A.D.3d 945, 945–946, 68 N.Y.S.3d 774 [2018] ).  Contrary to defendant's contention, “it was not necessary for [him] to engage in a factual recitation of the elements of the crime and ․ his affirmative responses to the court's questions were sufficient to establish his guilt” (People v. Griffith, 136 A.D.3d 1114, 1115, 25 N.Y.S.3d 400 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ).

We find defendant's challenge to the severity of the sentence to be without merit.  The agreed-upon sentence was not harsh or excessive inasmuch as it was the statutory minimum prison term for a second felony offender convicted of a class D felony (see Penal Law § 70.06[2], [3][d];  People v. Horton, 140 A.D.3d 1525, 1525, 33 N.Y.S.3d 777 [2016] ).  Defendant's remaining contentions raised in his pro se brief have been reviewed and are without merit.

ORDERED that the judgment is affirmed.

Pritzker, J.

Garry, P.J., McCarthy, Devine and Aarons, JJ., concur.