PEOPLE v. THOMAS

Reset A A Font size: Print

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. James E. THOMAS, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, SMITH, PINE, AND LAWTON, JJ. Charles A. Marangola, Moravia, for Defendant-Appellant. James B. Vargason, District Attorney, Auburn (Charles M. Thomas of Counsel), for Plaintiff-Respondent.

On appeal from a judgment convicting him following a plea of guilty of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that his plea allocution was insufficient because he negated the essential element of intent.   That contention is not preserved for our review inasmuch as “[County Court] conducted the requisite further inquiry, and defendant did not thereafter raise any further objections or move to withdraw his plea or to vacate the judgment of conviction” (People v. Jennings, 8 A.D.3d 1067, 1068, 778 N.Y.S.2d 399, lv. denied 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832;  see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Simmons, 294 A.D.2d 928, 741 N.Y.S.2d 773, lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10).   Defendant also failed to preserve for our review his further contention that the allocution was insufficient because the court failed to inquire into potential defenses (see People v. Beach, 306 A.D.2d 753, 754, 760 N.Y.S.2d 912;  People v. Richardson, 275 A.D.2d 864, 865, 714 N.Y.S.2d 140, lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150;  People v. Wallace, 247 A.D.2d 257, 258, 669 N.Y.S.2d 26;  People v. Gehy, 220 A.D.2d 527, 632 N.Y.S.2d 34, lv. denied 87 N.Y.2d 1019, 644 N.Y.S.2d 153, 666 N.E.2d 1067).   In any event, both contentions lack merit.   We further conclude that the 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: