Opinion
2014-11-26
The PEOPLE, etc., respondent, v. AXEL M. (Anonymous), appellant.
Marianne Karas, Thornwood, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff of counsel), for respondent.
Marianne Karas, Thornwood, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered September 3, 2013, adjudicating him a youthful offender, upon his plea of guilty to assault in the first degree and attempted robbery in the first degree (two counts), and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea agreement was unsupported by valid consideration is unpreserved for appellate review. In any event, contrary to the defendant's contention, it is not the case here that “ ‘there was no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [his] plea’ ” (People v. Brady–Laffer, 102 A.D.3d 806, 806–807, 957 N.Y.S.2d 892, quoting People v. Nicelli, 74 A.D.3d 1235, 1236–1237, 904 N.Y.S.2d 119).
Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Persaud, 109 A.D.3d 626, 970 N.Y.S.2d 324), the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowing, voluntary, or intelligent, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( seeCPL 220.60[3]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815; People v. Ovalle, 112 A.D.3d 971, 977 N.Y.S.2d 401; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220). In any event, the defendant's contention is without merit. The record demonstrates that the defendant's plea was knowing, voluntary, and intelligent. Moreover, contrary to the defendant's contention, the statements attributed to the defendant in the presentence investigation report did not obligate the court to sua sponte offer the defendant the opportunity to withdraw his guilty plea ( see People v. Taylor, 60 A.D.3d 708, 709, 874 N.Y.S.2d 531; People v. Conti, 285 A.D.2d 557, 557, 727 N.Y.S.2d 884; see also People v. Gomez, 114 A.D.3d 701, 702, 979 N.Y.S.2d 828; People v. Hernandez, 110 A.D.3d 919, 919, 972 N.Y.S.2d 697; People v. Kelly, 50 A.D.3d 921, 921, 854 N.Y.S.2d 674), and, in any event, the defendant reaffirmed his guilty plea at sentencing ( cf. People v. Burton, 133 A.D.2d 276, 277, 519 N.Y.S.2d 65).