Opinion
2008-1765 D CR.
Decided on December 15, 2010.
Appeal from a judgment of the Justice Court of the Town of Wappinger, Dutchess County (Carl S. Wolfson, J.), rendered August 12, 2008. The judgment convicted defendant, upon her plea of guilty, of petit larceny.
ORDERED that the judgment of conviction is affirmed.
PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ.
Defendant was convicted, upon her plea of guilty, of petit larceny (Penal Law § 155.25). The plea proceeding was not recorded by a stenographer. Defendant filed an amended affidavit of errors alleging that her plea was not voluntarily entered. The Justice Court filed its return, summarizing the plea allocution.
On appeal, defendant contends that the judgment of conviction should be reversed because this court is unable to review the voluntariness of her plea as there are no stenographic minutes of the plea proceeding. Defendant asserts that reconstruction of the proceeding is impossible and that she has fully served her sentence. Consequently, defendant argues that the accusatory instrument should be dismissed.
Where, as here, an appeal is taken in a case in which the underlying proceedings were not recorded by a stenographer, CPL 460.10 (3) (a) directs the appellant to file an "affidavit or errors, setting forth alleged errors or defects in the proceedings which are the subjects of the appeal." In response to the affidavit of errors, "[t]he court's return must set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitutes the factual foundation for the contentions alleged in the affidavit of errors" (CPL 460.10 [d]).
The Justice Court complied with the mandate of CPL 460.10 (3) (d). Its return, by which this court is bound ( see People v Prior, 4 NY2d 70, 73), sets forth the facts adduced at the plea proceeding which resulted in the judgment convicting defendant of petit larceny. Thus, defendant's contention is without merit.
Defendant further argues on appeal that her guilty plea was not knowing and voluntary. However, we find that this issue was not preserved for appellate review since she failed to move to withdraw her plea prior to sentencing ( see People v Clarke, 93 NY2d 904, 906). Moreover, the narrow exception to the preservation rule does not apply here since defendant's recitation of the facts of the underlying offense, as summarized in the court's return, does not cast doubt upon her guilt or otherwise call into question the voluntariness of her plea so as to have the court inquire further to ensure that the plea was knowing and voluntary ( see People v Lopez, 71 NY2d 662, 666). In any event, the record demonstrates that defendant's plea was entered knowingly and voluntarily ( see People v Fiumefreddo, 82 NY2d 536, 543).
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Molia and LaCava, JJ., concur.