Opinion
2014-11-5
The PEOPLE, etc., respondent, v. Noel SANCHEZ, appellant.
Andrew E. MacAskill, Westbury, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Rebecca L. Abensur of counsel), for respondent.
Andrew E. MacAskill, Westbury, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Rebecca L. Abensur of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered June 20, 2012, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowing, voluntary, or intelligent because the allocution was factually insufficient is unpreserved for appellate review, since he did not move to withdraw his plea ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Fisher, 119 A.D.3d 813, 989 N.Y.S.2d 311). Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here because the defendant's plea allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. McClinton, 118 A.D.3d 915, 987 N.Y.S.2d 241). In any event, nothing in the record of the plea allocution called into question the voluntary, knowing, and intelligent nature of the defendant's plea ( see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. McKenzie, 98 A.D.3d 749, 750, 950 N.Y.S.2d 177; People v. Johnson, 73 A.D.3d 951, 899 N.Y.S.2d 875; People v. Winbush, 199 A.D.2d 447, 448, 605 N.Y.S.2d 385). Furthermore, because the defendant pleaded guilty to a lesser crime than the felony charged in the indictment, and since the allocution establishes that the defendant understood the charges against him, a factual basis for the plea was unnecessary ( see People v. Ballard, 112 A.D.3d 731, 732, 976 N.Y.S.2d 404; People v. McKenzie, 98 A.D.3d at 750, 950 N.Y.S.2d 177).
The defendant was not deprived of the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).