PEOPLE v. GARBARINI

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

The PEOPLE of the State of New York, Respondent, v. Leon F. GARBARINI, Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND GREEN, JJ. David P. Elkovitch, Auburn, for Defendant-Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20).   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and thus he failed to preserve for our review his contention that County Court erred in sentencing him after he made an exculpatory statement at the sentencing hearing (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Sciascia, 302 A.D.2d 980, 754 N.Y.S.2d 618, lv. denied 100 N.Y.2d 645, 769 N.Y.S.2d 211, 801 N.E.2d 432).   In any event, that contention lacks merit.   The plea allocution established defendant's guilt, and we note that the court had no obligation to conduct a sua sponte inquiry in response to defendant's statement at sentencing (see People v. Frempong, 51 A.D.3d 506, 857 N.Y.S.2d 158, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659;  People v. Sands, 45 A.D.3d 414, 415, 845 N.Y.S.2d 326, lv. denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814;  People v. Jackson, 273 A.D.2d 937, 711 N.Y.S.2d 807, lv. denied 95 N.Y.2d 906, 716 N.Y.S.2d 646, 739 N.E.2d 1151).   Indeed, “[t]he court's duty to inquire [is] not triggered by statements [that a] defendant may have made at junctures other than the plea proceeding itself” (Sands, 45 A.D.3d at 415, 845 N.Y.S.2d 326).   Defendant also failed to preserve for our review his further contention that the court erred in permitting the prosecutor to conduct a portion of the plea allocution and, in any event, that contention is also without merit (see People v. Swontek [appeal No. 1], 289 A.D.2d 989, 734 N.Y.S.2d 919, lv. denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369;  People v. Smith, 288 A.D.2d 931, 931, 732 N.Y.S.2d 198).

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

MEMORANDUM: