PEOPLE v. TUCKER

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

The PEOPLE of the State of New York, Respondent, v. Dyquann M. TUCKER, Defendant–Appellant.

118

Decided: February 01, 2019

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ. BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a plea of guilty of murder in the second degree (Penal Law § 125.25 [1] ).  Defendant contends that the guilty plea was not entered knowingly, intelligently, or voluntarily because County Court failed to advise him that he was forfeiting his right to have the court rule on his suppression motion or any other pretrial motions.  Defendant did not move to withdraw his guilty plea or vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (see People v. Williams, 27 N.Y.3d 212, 221–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016];  People v. Williams, 124 A.D.3d 1285, 1285, 999 N.Y.S.2d 642 [4th Dept. 2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ).  The “ ‘narrow exception’ ” to the preservation rule does not apply here inasmuch as defendant did not say anything during the plea colloquy that “cast significant doubt on his guilt, or otherwise called into question the voluntariness of his plea” (People v. Gause, 133 A.D.3d 1367, 1367, 19 N.Y.S.3d 461 [4th Dept. 2015], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016], quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).

In any event, defendant's contention is without merit.  “[T]rial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights” (People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990];  see People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ).  Here, in addition to advising defendant of his Boykin rights (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ), the court confirmed with defendant that he understood the terms of the plea offer, that he was satisfied with his counsel's representation, and that he was not coerced into accepting the plea.  Reviewing “the record as a whole and the circumstances of the plea in its totality” (Sougou, 26 N.Y.3d at 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196), we conclude that the plea was knowing, intelligent, and voluntary (see People v. Roulette, 55 A.D.3d 394, 395, 866 N.Y.S.2d 38 [1st Dept. 2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009];  People v. Whitehurst, 291 A.D.2d 83, 86, 737 N.Y.S.2d 152 [3d Dept. 2002], lv denied 98 N.Y.2d 642, 744 N.Y.S.2d 771, 771 N.E.2d 844 [2002] ).