PEOPLE v. FLORES (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert G. Bogle, J.), rendered September 24, 2021, convicting him of forcible touching, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

In May 2021, the defendant pleaded guilty to one count of forcible touching (Penal Law § 130.52[1]) arising out of an incident wherein he placed his hand above the clothing on the vagina and buttocks of an eight-year-old child.  The defendant contends, inter alia, that his plea of guilty was involuntary.  Although the defendant's contention survives his waiver of the right to appeal (see People v. Jensen, 205 A.D.3d 926, 926, 166 N.Y.S.3d 579;  People v. Ospina, 175 A.D.3d 513, 513, 107 N.Y.S.3d 59), it is unpreserved for appellate review as the defendant did not move to withdraw his plea or otherwise raise the issue before the Supreme Court (see People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617;  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).  Moreover, contrary to the defendant's contention, nothing in his allocution cast doubt upon his guilt, negated an essential element of the crime, or called into question the voluntariness of his plea (see People v. Jensen, 205 A.D.3d at 927, 166 N.Y.S.3d 579).  Nor did the fact that the defendant informed the court that he possesses only a second grade education require the court to make further inquiry, as there is nothing in the record to show that he lacked the capacity to understand the proceedings against him or that he was unable to assist in his own defense (see People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917;  People v. Appling, 94 A.D.3d 1135, 1136, 942 N.Y.S.2d 617).

In any event, the record establishes that the defendant's plea was knowing, voluntary, and intelligent (see People v. Conceicao, 26 N.Y.3d 375, 383, 23 N.Y.S.3d 124, 44 N.E.3d 199;  People v. Jensen, 205 A.D.3d at 927, 166 N.Y.S.3d 579).

DUFFY, J.P., RIVERA, GENOVESI and TAYLOR, JJ., concur.