THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. STEVEN FOWLER DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STEVEN L. FOWLER, DEFENDANT–APPELLANT.

KA 14–00041

Decided: February 11, 2016

PRESENT:  WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1] ), defendant contends that County Court erred in refusing to grant his pro se motion to withdraw his plea, which defendant asserts was involuntary because his attorney failed to advise him of the possible defense of intoxication.  We reject that contention.  Defendant was represented by counsel and was not entitled to hybrid representation (see People v. Rodriguez, 95 N.Y.2d 497, 501–502;  People v. Alsaifullah, 96 AD3d 1103, 1103, lv denied 19 NY3d 944), and we therefore conclude that the court did not abuse its discretion in refusing to entertain the pro se motion.  We note in any event that defendant admitted during the plea colloquy that he intended to cause serious physical injury to the victim when he stabbed him with a knife, and, thus, his claim that he was too intoxicated to form the requisite intent is belied by the plea transcript (see generally People v. Santana, 110 A.D.2d 789, 789, lv denied 67 N.Y.2d 656).

Defendant failed to preserve for our review his contention that the court erred in sentencing him as a second violent felony offender inasmuch as he failed to controvert the allegations in the predicate felony statement (see People v. Smith, 73 N.Y.2d 961, 962–963;  People v. Lawrence, 23 AD3d 1039, 1039–1040, lv denied 6 NY3d 835), and the narrow exception to the preservation rule does not apply (see People v. Nieves, 2 NY3d 310, 315–316;  cf.  People v. Samms, 95 N.Y.2d 52, 55–57).  We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c];  People v. Sullivan, 4 AD3d 223, 224, lv. denied 2 NY3d 765).

Frances E. Cafarell

Clerk of the Court