Opinion
2013-03-21
The PEOPLE of the State of New York, Respondent, v. Bruce BONVILLE, Appellant.
Ralph Cherchian, Albany, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.
Ralph Cherchian, Albany, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, McCARTHY and GARRY, JJ.
GARRY, J.
Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered May 3, 2010 in Clinton County, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
The facts of this case are more fully set out in our prior decision in this matter (69 A.D.3d 1223, 1223–1224, 894 N.Y.S.2d 208 [2010] ). Defendant was convicted on charges stemming from incidents involving his children, including one wherein he inadvertently shot his son during an altercation ( id. at 1223–1224, 894 N.Y.S.2d 208). We reversed and, upon remittal, defendant pleaded guilty to assault in the second degree and waived his right to appeal. Supreme Court sentenced defendant to a prison term of five years, to be followed by three years of postrelease supervision. Defendant now appeals, and we affirm.
Defendant asserts that the plea colloquy did not establish that he acted recklessly as required to establish the crime of second-degree assault ( seePenal Law §§ 15.05[3]; 120.05[4] ). Such an attack upon the factual sufficiency of the plea is precluded by defendant's waiver of the right to appeal both his conviction and sentence which, contrary to his assertion, we find to be valid ( see People v. Holmes, 75 A.D.3d 834, 834–835, 906 N.Y.S.2d 627 [2010],lv. denied15 N.Y.3d 921, 913 N.Y.S.2d 648, 939 N.E.2d 814 [2010];People v. Swindell, 72 A.D.3d 1340, 1341, 898 N.Y.S.2d 380 [2010],lv. denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). Moreover, to the extent that defendant's challenge to his guilty plea can be construed as an attack upon its voluntariness, which survives his appeal waiver, the record does not indicate that he moved to withdraw his plea or vacate the judgment of conviction, rendering the issue unpreserved for our review ( see People v. Martinez, 79 A.D.3d 1378, 1378, 912 N.Y.S.2d 783 [2010],lv. denied16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011];People v. Holmes, 75 A.D.3d at 834–835, 906 N.Y.S.2d 627). Nor are we persuaded that the narrow exception to the preservation requirement was triggered here. Although defendant was initially unwilling to admit that his behavior had been reckless, he ultimately conceded that his actions in brandishing a loaded pistol during the altercation had been just that ( see e.g. People v. White, 75 A.D.3d 109, 120, 901 N.Y.S.2d 346 [2010],lv. denied15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010];People v. Rodriguez, 144 A.D.2d 273, 275, 533 N.Y.S.2d 878 [1988],lvs. denied73 N.Y.2d 1021, 541 N.Y.S.2d 775, 539 N.E.2d 603 [1989] ). The plea allocution as a whole was thus consistent with defendant's guilt, did not call into question the voluntariness of his plea and demonstrated that he knowingly, intelligently and voluntarily pleaded guilty ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];People v. Martinez, 79 A.D.3d at 1378–1379, 912 N.Y.S.2d 783).
ORDERED that the judgment is affirmed.