PEOPLE v. PERRY

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Armond PERRY, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND LAWTON, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Shirley K. Duffy of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 [1] ).   Defendant failed to move to withdraw the plea or to vacate the judgment of conviction and thus has failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Scott, 15 A.D.3d 883, 788 N.Y.S.2d 798, lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329).   In any event, defendant's contention lacks merit.   Contrary to the contention of defendant, it is not necessary that he “acknowledge [ ] committing every element of the pleaded-to offense ․, or provide[ ] a factual exposition for each element of the pleaded-to offense” (People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;  see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  Lopez, 71 N.Y.2d at 666 n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Here, the record establishes that defendant answered questions specifically addressing the facts and circumstances of the crime, thus establishing that he intentionally caused the death of the victim by shooting him (see People v. Kemp, 288 A.D.2d 635, 636, 732 N.Y.S.2d 694).

 We also reject defendant's contention that the photo arrays were unduly suggestive.   There is no evidence that the attention of any witness “was ‘drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection’ ” (People v. Cunningham, 15 A.D.3d 945, 945, 788 N.Y.S.2d 790, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677) or that the individuals portrayed in the photo arrays were so distinct that there was “a ‘substantial likelihood that the defendant would be singled out for identification’ ” (People v. Beason, 252 A.D.2d 975, 975, 674 N.Y.S.2d 596, lv. denied 92 N.Y.2d 980, 683 N.Y.S.2d 761, 706 N.E.2d 749;  see People v. Rodriguez, 17 A.D.3d 1127, 1128-1129, 794 N.Y.S.2d 543).   Finally, the bargained-for sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: