PEOPLE v. MCKINNEY (2018)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. William D. MCKINNEY, also known as “Dollar Bill,” Appellant.

2016–06551

Decided: June 27, 2018

ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ. Gary E. Eisenberg, New City, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Craig S. Brown, J.), rendered May 25, 2016, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowing, voluntary, or intelligent because the allocution was factually insufficient is unpreserved for appellate review, since the defendant did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. Elting, 151 A.D.3d 739, 740, 53 N.Y.S.3d 550;  People v. McKenzie, 98 A.D.3d 749, 750, 950 N.Y.S.2d 177).  Moreover, the exception to the preservation requirement does not apply here because the defendant's plea allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Sanchez, 122 A.D.3d 646, 646, 994 N.Y.S.2d 427;  People v. McKenzie, 98 A.D.3d at 750, 950 N.Y.S.2d 177).  In any event, the record establishes that the plea was entered into knowingly, voluntarily, and intelligently (see People v. Elting, 151 A.D.3d at 740, 55 N.Y.S.3d 439;  People v. McKenzie, 98 A.D.3d at 750, 950 N.Y.S.2d 177;  People v. Mazzilli, 125 A.D.2d 602, 603, 509 N.Y.S.2d 656).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Although the defendant correctly contends that he should have been sentenced as a second violent felony offender rather than as a second felony offender, he is not adversely affected by that adjudication and it is not a basis upon which to withdraw his plea or have the sentence vacated (see CPL 470.15[1];  People v. Hanyo, 103 A.D.3d 814, 814, 959 N.Y.S.2d 450;  see also People v. Witherspoon, 100 A.D.3d 809, 809–810, 953 N.Y.S.2d 657).

SCHEINKMAN, P.J., COHEN, DUFFY and IANNACCI, JJ., concur.