Opinion
798 KA 17-01856
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Michael T. SCOTT, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the second degree ( Penal Law § 220.18 [1] ), defendant contends that his guilty plea was not knowingly, intelligently, and voluntarily entered because he did not expressly establish each element of the offense. We note at the outset that defendant does not challenge the validity of his waiver of the right to appeal. Although defendant's contention survives the unchallenged appeal waiver, he nevertheless failed to preserve his contention for our review because he did not "move to withdraw the plea or to vacate the judgment of conviction" ( People v. Seymore , 188 A.D.3d 1767, 1768, 135 N.Y.S.3d 745 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021] ; see People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation requirement (see Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Kaye , 190 A.D.3d 767, 768, 135 N.Y.S.3d 854 [2d Dept. 2021], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 148, 167 N.E.3d 1283 [2021] ).
In any event, we conclude that defendant's contention is without merit. It is well established that a "defendant who pleads guilty need not ‘acknowledge[ ] committing every element of the pleaded-to offense ... or provide[ ] a factual exposition for each element of the pleaded-to offense’ " ( People v. Madden , 148 A.D.3d 1576, 1578, 52 N.Y.S.3d 176 [4th Dept. 2017], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017], quoting People v. Seeber , 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ). In this case, "even if defendant's allocution did not establish the essential elements of the crime to which he pleaded guilty, it would not require vacatur of his plea since there is no suggestion in the record that the plea was improvident or baseless" or that it was otherwise involuntary ( id. [internal quotation marks omitted]).