PEOPLE v. SEEBER

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

The PEOPLE of the State of New York, Respondent, v. Gary F. SEEBER, Appellant.

Decided: November 24, 2004

Before:  MERCURE, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ. Ralph Cherchian, Albany, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Geoffrey B. Rossi of counsel), for respondent.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered April 7, 2003, convicting defendant upon his plea of guilty of the crime of gang assault in the first degree.

Defendant and five codefendants were charged in a six-count indictment with numerous crimes arising from the brutal beating of a man in the Town of Windsor, Broome County.   Defendant pleaded guilty to gang assault in the first degree in full satisfaction of the indictment.   He was sentenced to 10 years in prison, to be followed by a five-year period of postrelease supervision.

 Defendant's sole contention on appeal is that his plea allocution was insufficient because it did not establish that the victim suffered a serious physical injury, a necessary element of the crime of gang assault in the first degree (see Penal Law § 120.07).   Initially, we note that inasmuch as defendant did not move to withdraw his plea or vacate the judgment of conviction, he has not preserved for our review a challenge to the factual sufficiency of the plea (see People v. Artz, 10 A.D.3d 814, 782 N.Y.S.2d 151 [2004];  People v. MacCue, 8 A.D.3d 910, 911, 778 N.Y.S.2d 731 [2004], lv. denied 3 N.Y.3d 708, 785 N.Y.S.2d 36, 818 N.E.2d 678 [2004];  People v. Smith, 2 A.D.3d 1057, 1058, 768 N.Y.S.2d 670 [2003], lv. denied 2 N.Y.3d 746, 778 N.Y.S.2d 471, 810 N.E.2d 924 [2004] ).   The narrow exception to the preservation requirement is inapplicable as it is triggered where a defendant has made statements inconsistent with his or her guilt which negate an essential element of the crime to which the defendant pleaded (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Kelly, 3 A.D.3d 789, 770 N.Y.S.2d 910 [2004], lv. denied 2 N.Y.3d 801, 781 N.Y.S.2d 301, 814 N.E.2d 473 [2004];  People v. Wehrle, 308 A.D.2d 660, 661, 764 N.Y.S.2d 668 [2003];  People v. Ocasio, 265 A.D.2d 675, 676, 697 N.Y.S.2d 368 [1999] ), “not where the sufficiency of the articulation of the element is challenged” (People v. Vonderchek, 245 A.D.2d 979, 980, 667 N.Y.S.2d 129 [1997], lv. denied 91 N.Y.2d 945, 671 N.Y.S.2d 725, 694 N.E.2d 894 [1998];  see People v. Lopez, supra at 666 n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Meyer, 1 A.D.3d 636, 637, 766 N.Y.S.2d 411 [2003];  People v. Ward, 282 A.D.2d 871, 872, 725 N.Y.S.2d 418 [2001] ).

 In any event, considering defendant's claim in the interest of justice (see People v. Clough, 306 A.D.2d 556, 558, 759 N.Y.S.2d 820 [2003], lv. denied 100 N.Y.2d 593, 766 N.Y.S.2d 168, 798 N.E.2d 352 [2003] ), we find it to be without merit.   We note that “a plea allocution is generally sufficient where, as here, a defendant's affirmative responses to County Court's questions established the elements of the crime[ ] charged and there is no indication in the record that the voluntary plea was baseless or improvident” (People v. Kemp, 288 A.D.2d 635, 636, 732 N.Y.S.2d 694 [2001];  see People v. Baker, 301 A.D.2d 868, 869, 752 N.Y.S.2d 921 [2003], lv. dismissed 99 N.Y.2d 625, 760 N.Y.S.2d 106, 790 N.E.2d 280 [2003] ).   A defendant is not required to recite all of the elements of the crime and the court is not required to elicit from the defendant a narrative of events (see People v. Pringle, 10 A.D.3d 802, 803, 782 N.Y.S.2d 132 [2004];  People v. Victor, 262 A.D.2d 872, 874, 694 N.Y.S.2d 774 [1999], lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393 [1999] ).   Here, defendant gave an affirmative response when asked by County Court if he understood that, by his guilty plea, he was admitting that he and certain codefendants acted in concert and with the intent to cause serious physical injury to the victim and did, in fact, cause such injury.   This, together with defendant's further admission that he and those codefendants hit and kicked the victim and that one of the codefendants struck the victim in the head with a heavy flashlight, established that defendant committed the crime of gang assault in the first degree (see People v. Meyer, supra at 637, 766 N.Y.S.2d 411;  People v. Victor, supra at 874, 694 N.Y.S.2d 774).   Therefore, we find no reason to disturb the judgment of conviction.

ORDERED that the judgment is affirmed.

SPAIN, J.

MERCURE, J.P., CARPINELLO, LAHTINEN and KANE, JJ., concur.

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