PEOPLE v. REID

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

The PEOPLE of the State of New York, Respondent, v. Richard REID, Appellant.

Decided: September 29, 2005

Before:  CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Karen L. Kimball, Wynantskill, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Michael A. Korchak of counsel), for respondent.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered April 8, 2003, convicting defendant upon his plea of guilty of the crime of course of sexual conduct against a child in the second degree.

Defendant was charged with course of sexual conduct against a child in the second degree stemming from his repeated sexual contact with his underage son.   Defendant waived indictment and agreed to plead guilty to course of sexual conduct against a child in the second degree.   During the plea colloquy, County Court advised defendant of the rights he was giving up by virtue of his plea, including his right to assert a potential defense of intoxication.   Defendant thereafter admitted that on at least two occasions between April 2001 and May 2002 he engaged in sexual conduct with a child under the age of 13.   Defendant was sentenced to a prison term of two years followed by a three-year period of postrelease supervision.   County Court also issued an order of protection prohibiting defendant from having contact with his son.   Counsel indicated that he might seek a modification of the order at a later time, but raised no further objection to the order of protection.   Defendant now appeals.

 Initially, defendant's claim that his plea allocution was insufficient is not preserved for our review in light of his failure to move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Church, 287 A.D.2d 788, 788, 731 N.Y.S.2d 400 [2001], lv. denied 97 N.Y.2d 680, 738 N.Y.S.2d 295, 764 N.E.2d 399 [2001];  People v. Ferreri, 271 A.D.2d 805, 805, 707 N.Y.S.2d 259 [2000], lv. denied 95 N.Y.2d 834, 713 N.Y.S.2d 141, 735 N.E.2d 421 [2000] ).   The exception to the preservation rule is inapplicable as defendant did not make any statements that were inconsistent with his guilt such as to negate an essential element of the crime (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Ward, 2 A.D.3d 1219, 1219, 768 N.Y.S.2d 850 [2003], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 308, 814 N.E.2d 480 [2004] ), and he opted to waive a possible intoxication defense after discussing it with his attorney.   In any event, defendant's unpreserved attack on his plea allocution is refuted by the record, which reveals that the plea was knowingly, voluntarily and intelligently entered (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];  People v. Kemp, 288 A.D.2d 635, 636, 732 N.Y.S.2d 694 [2001] ).   Defendant's remaining claim that the order of protection was not part of the plea agreement is not preserved for our review (see CPL 470.05[2];  People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ) and, in any event, the order was properly issued pursuant to CPL 530.12(5) given the parent-child relationship here (see People v. Goodband, 291 A.D.2d 584, 585, 737 N.Y.S.2d 680 [2002] ).

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CARDONA, P.J., MERCURE, MUGGLIN and LAHTINEN, JJ., concur.

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