Opinion
109112
06-04-2020
The PEOPLE of the State of New York, Respondent, v. Joseph G. BERKMAN Jr., Appellant.
Norbert A. Higgins, Binghamton, for appellant. Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Norbert A. Higgins, Binghamton, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Colangelo, J.
Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered December 19, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the third degree (two counts).
Defendant waived indictment and agreed to be prosecuted pursuant to two superior court informations, each charging him with one count of burglary in the third degree, with the understanding that he would be sentenced as a second felony offender to concurrent prison terms of 2 to 6 years. Pursuant to the plea agreement, defendant's plea also would satisfy other then-pending charges. After he pleaded guilty to both charges but prior to sentencing, defendant, who was being held in the local jail, was charged with promoting prison contraband in the first degree. Following an adjournment, the parties appeared for sentencing, at which time County Court indicated that it intended to impose an enhanced sentence of 3 to 6 years upon each of defendant's convictions (to be served concurrently) in exchange for the People's dismissal of the promoting prison contraband charge. After advising defendant that he could "get [his] plea back" because the court could not impose the initially-promised sentence and affording defendant time to confer with counsel, defendant indicated that he wished to proceed, and County Court sentenced defendant as a second felony offender to concurrent prison terms of 3 to 6 years. This appeal ensued.
We affirm. Defendant's challenge to the factual sufficiency and/or voluntariness of his plea is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. King, 166 A.D.3d 1236, 1237, 86 N.Y.S.3d 679 [2018] ; People v. Small, 166 A.D.3d 1237, 1238, 86 N.Y.S.3d 677 [2018] ; People v. Hatch, 165 A.D.3d 1321, 1321–1322, 82 N.Y.S.3d 744 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ). The narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an element of the charged crime or otherwise called into question the voluntariness of his plea (see People v. Schmidt, 179 A.D.3d 1384, 1385, 114 N.Y.S.3d 737 [2020] ; People v. Mackie, 177 A.D.3d 1192, 1193, 115 N.Y.S.3d 138 [2019], lv denied 34 N.Y.3d 1130, 118 N.Y.S.3d 518, 141 N.E.3d 474 [2020] ; People v. Alexander, 174 A.D.3d 1068, 1069, 104 N.Y.S.3d 765 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019] ). Further, "nothing on the face of the [plea] colloquy calls into question ... defendant's ... capacity to enter into it" ( People v. Mackie, 177 A.D.3d at 1193, 115 N.Y.S.3d 138 [internal quotation marks and citations omitted]; see People v. Lamb, 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2018], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ). Under these circumstances, we discern no basis upon which to take corrective action in the interest of justice.
Garry, P.J., Clark, Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.