Opinion
05-03-2024
The PEOPLE of the State of New York, Respondent, v. Robert A. STEHM, Jr., Defendant-Appellant.
ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Philip J. Roche, J.), rendered January 3, 2023. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the first degree.
ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
[1] Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the first degree (Penal Law §§ 110.00, 140.30 [2]). As defendant correctly concedes, by failing to move to withdraw his plea or to vacate the judgment of conviction, he failed to preserve for our review his contention that the plea was not knowingly, voluntarily and intelligently entered, as well as his challenge to the factual sufficiency of the plea allocution (see People v. Liepke, 184 A.D.3d 1109, 1109, 123 N.Y.S.3d 883 [4th Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 410, 152 N.E.3d 1211 [2020]; People v. Sheppard, 154 A.D.3d 1329, 1329, 63 N.Y.S.3d 173 [4th Dept. 2017]). Contrary to defendant’s contention, we conclude that this case does not fall within the rare exception to the preservation requirement (see People v. Phillips, 221 A.D.3d 1501, 1502, 200 N.Y.S.3d 233 [4th Dept. 2023], lv denied 41 N.Y.3d 966, 208 N.Y.S.3d 538, 232 N.E.3d 216 [2024]; People v Szymanski, 217 A.D.3d 1415, 1415, 189 N.Y.S.3d 357 [4th Dept. 2023], lv denied 40 N.Y.3d 952, 195 N.Y.S.3d 680, 217 N.E.3d 701 [2023]; see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]). In any event, defendant’s challenges to the plea are without merit.
[2, 3] Contrary to his challenge to the voluntariness of the plea, we conclude that defendant’s assertion that he did not understand the nature of the plea and its consequences is belied by the record of the plea proceeding (see People v. McCullen, 162 A.D.3d 1661, 1661, 79 N.Y.S.3d 440 [4th Dept. 2018]). Moreover, " ‘[a] history of prior mental illness or treatment does not itself call into question [a] defendant’s competence’ " and, here, "[t]here is no indication in the record that defendant was unable to understand the proceedings or that he was mentally incompetent at the time he entered his guilty plea" (People v. Williams, 35 A.D.3d 1273, 1275, 825 N.Y.S.2d 862 [4th Dept. 2006], lv denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007]; see People v. Cato, 199 A.D.3d 1388, 1389, 154 N.Y.S.3d 548 [4th Dept. 2021]). Indeed, defendant denied during the plea colloquy that he was suffering from any mental health problems that would make it difficult for him to understand the proceeding, and "[t]here was not the slightest indication that defendant was uninformed, confused or incompetent" at the time he entered the plea (People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002]; see Cato, 199 A.D.3d at 1389, 154 N.Y.S.3d 548; People v. Jones, 175 A.D.3d 1845, 1846, 109 N.Y.S.3d 774 [4th Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 132, 139 N.E.3d 790 [2019]).
[4, 5] Defendant’s challenge to the factual sufficiency of the plea likewise lacks merit. "Where[,] [as here], a defendant enters a negotiated plea to a lesser crime than one with which he is charged, no factual basis for the plea is required" (People v. Johnson, 23 N.Y.3d 973, 975, 989 N,Y.S.2d 680, 12 N.E.3d 1109 [2014]; see People v. Carbone, 199 A.D.3d 1489, 1490, 154 N.Y.S.3d 597 [4th Dept. 2021], lv denied 38 N.Y.3d 949, 165 N.Y.S.3d 457, 185 N.E.3d 978 [2022]; People v. Norman, 128 A.D.3d 1418, 1419, 7 N.Y.S.3d 813 [4th Dept. 2015], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016]). The record establishes that County Court nonetheless engaged defendant in a sufficient factual allocution inasmuch as defendant stated therein that he committed the essential elements of the crime to which he pleaded (see People v. Anderson, 70 A.D.3d 1320, 1320, 894 N.Y.S.2d 632 [4th Dept. 2010], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010]). Contrary to defendant’s assertions, the fact that defendant "gave monosyllabic responses to [the court’s] questions did not render the plea invalid" (People v. Pryce, 148 A.D.3d 1629, 1630, 51 N.Y.S.3d 296 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] [internal quotation marks omitted]).
[6] Although defendant further contends that the evidence is legally insufficient to support the conviction, he forfeited that contention by pleading guilty (see People v. Cossette, 199 A.D.3d 1397, 1398, 154 N.Y.S.3d 556 [4th Dept. 2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022]; People v. Weakfall, 151 A.D.3d 1966, 1966, 54 N.Y.S.3d 910 [4th Dept. 2017]). Indeed, "it would be logically inconsistent to permit a defendant to enter a plea of guilty based on particular admitted facts, yet to allow that defendant contemporaneously to reserve the right to challenge on appeal the sufficiency of those facts to support a conviction, had there been a trial" (People v. Plunkett, 19 N.Y.3d 400, 405-406, 948 N.Y.S.2d 233, 971 N.E.2d 363 [2012]; see Cossette, 199 A.D.3d at 1398, 154 N.Y.S.3d 556; Weakfall, 151 A.D.3d at 1966, 54 N.Y.S.3d 910).