Opinion
2022-01427 Ind. 2430/17
03-08-2022
The People of the State of New York, Respondent, v. Brian Grant, Defendant-Appellant. Appeal No. 15468 Case No. 2019-4459
Janet E. Sabel, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Laura Boyd of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.
Before: Acosta, P.J., Renwick, Webber, Kern, Friedman, JJ.
Judgment, Supreme Court, New York County (Ann Scherzer, J.), rendered May 1, 2018, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.
Defendant's challenge to the voluntariness of his plea is unpreserved, and we decline to review it in the interest of justice. The narrow exception to the preservation rule (see People v Lopez, 71 N.Y.2d 662, 665 [1988]) does not apply, because "[d]efendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a... defense" (People v Pastor, 28 N.Y.3d 1089, 1090-1091 [2016]). Defendant asserts that he made a statement raising a justification defense when he was interviewed in connection with a presentence report. Such an interview, however, is not part of the actual sentencing proceeding, which occurs in open court. We have repeatedly held that the Lopez exception does not apply to statements in presentence reports (see e.g. People v Rojas, 159 A.D.3d 468 [2018], lv denied 31 N.Y.3d 1086 [2018]). As an alternative holding, we find that nothing in the record casts doubt on the voluntariness of the plea.