PEOPLE v. MACKIE

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

The PEOPLE of the State of New York, Respondent, v. Kaysaun MACKIE, Defendant-Appellant.

Decided: September 30, 2008

SAXE, J.P., SWEENY, McGUIRE, RENWICK, FREEDMAN, JJ. Robert T. Perry, New York, for appellant. Robert M. Morgenthau, District Attorney, New York (Rena Paul of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April 19, 2006, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of 6 years, unanimously affirmed.

 Since defendant did not move to withdraw his guilty plea on the grounds he raises on appeal, and since this case does not come within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), his challenge to the validity of the plea is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   The record establishes that defendant's plea was knowing, intelligent and voluntary and there was nothing in the plea allocution that cast significant doubt on his guilt (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ).   The requisite intent to cause serious physical injury could be readily inferred from defendant's responses during the allocution (see People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347 [1977];  see also People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ).   The court's inquiry into defendant's claim of self-defense was sufficient to establish that he had no viable justification defense, and that he made a valid waiver of that defense.

We perceive no basis for reducing the sentence.