PEOPLE v. KING (2018)

MEMORANDUM AND ORDER

During a prison yard fight, defendant, an inmate, was observed throwing a razor-like weapon, and he was charged by indictment with promoting prison contraband in the first degree.  Pursuant to a plea agreement, County Court granted the People's motion to amend the indictment to charge attempted promoting prison contraband in the first degree, and defendant pleaded guilty to that reduced charge.  Consistent with the agreement, defendant was sentenced, as an admitted second felony offender, to a prison term of 11/212 to 3 years.  Defendant appeals.

We affirm.  Defendant challenges the factual sufficiency of his plea allocution, arguing that it failed to establish that the contraband he possessed was dangerous.  This claim is unpreserved, as the record does not reflect that he made an appropriate postallocution motion (see CPL 220.60[3]; People v. Carston, 163 A.D.3d 1166, 1167, 80 N.Y.S.3d 724 [2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116, 2018 WL 4941007 [Sept. 20, 2018]; People v. Johnson, 153 A.D.3d 1047, 1048, 59 N.Y.S.3d 866 [2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ).  Further, defendant did not make any statements during the allocution that cast doubt on his guilt or the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016]; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  Moreover, “an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime” (People v. Goldstein, 12 N.Y.3d 295, 300–301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009]; accord People v. Woods, 147 A.D.3d 1156, 1157, 46 N.Y.S.3d 441 [2017], lv denied 29 N.Y.3d 1089, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ), nor was County Court required to “engage in a factual recitation,” as defendant's affirmative responses to the court's questions were sufficient (People v. Johnson, 153 A.D.3d at 1048, 59 N.Y.S.3d 866).

To the extent that defendant challenges his guilty plea as not knowing, voluntary and intelligent, this claim is likewise unpreserved and, were the issue properly before us, we would find that the plea was “a knowing, voluntary and intelligent choice among alternative courses of action” (People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]; see People v. Johnson, 153 A.D.3d at 1048, 59 N.Y.S.3d 866; People v. Woods, 147 A.D.3d at 1156–1157, 46 N.Y.S.3d 441).  Finally, contrary to defendant's argument, his “eligibility for an enhanced sentence upon a hypothetical future conviction is merely a ‘collateral consequence’ of a plea of guilty that [he] need not be advised of in order for the guilty plea to be deemed fully informed” (People v. Kirton, 36 A.D.3d 1011, 1014–1015, 827 N.Y.S.2d 352 [2007] [internal quotation marks and citation omitted], lv denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240 [2007]; accord People v. Richardson, 132 A.D.3d 1022, 1023, 17 N.Y.S.3d 196 [2015] ).

ORDERED that the judgment is affirmed.

Mulvey, J.

Garry, P.J., Egan Jr., Clark and Rumsey, JJ., concur.