Opinion
2006-867 W CR.
Decided July 16, 2008.
Appeal from a judgment of the Justice Court of the Town of Yorktown, Westchester County (William C. Gerstenzang, J.), rendered April 18, 2006. The judgment convicted defendant, upon his plea of guilty, of public display of offensive sexual material.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
Defendant, while represented by counsel, pleaded guilty to the class A misdemeanor of public display of offensive sexual material (Penal Law § 245.11) in satisfaction of that charge and another pending against him in connection with the same incident.
By failing to move in the court below to either withdraw his guilty plea ( see CPL 220.60) or to vacate the judgment of conviction ( see CPL 440.10), defendant failed to preserve the issue regarding the factual sufficiency of his plea allocution at the time he pleaded guilty ( People v Lopez, 71 NY2d 662, 665-666; People v Stevens, 43 AD3d 1088, 1089), and we decline to review said issue in the interest of justice ( see People v Sands, 45 AD3d 414, 415). Moreover, "[t]he narrow exception to the preservation rule explained in People v Lopez ( 71 NY2d 662, 665-666) does not apply since defendant's factual allocution does not cast significant doubt on his guilt" ( People v Sands, 45 AD3d at 415). While defendant did make some exculpatory statements to the preparer of the presentence report, these did not obligate the sentencing court to conduct a sua sponte inquiry into the basis for the guilty plea ( People v Kelly, 50 AD3d 921; People v Bonilla, 299 AD2d 934, 935). Furthermore, it affirmatively appears from the record that defendant's bargained-for guilty plea was voluntarily and understandingly entered ( see Boykin v Alabama, 395 US 238, 244; People v Harris, 61 NY2d 9, 19).
The sentence imposed was neither unduly harsh nor excessive. The court below did not improvidently exercise its discretion under all of the circumstances presented in imposing three years' probation with sex offender conditions, the previously agreed upon sentence, rather than a conditional discharge as requested herein ( see People v Adams, 175 AD2d 958, 959; People v Wolmart, 140 AD2d 733).
Accordingly, the judgment of conviction is affirmed.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.