Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Mickey A. DARLING, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. David W. Foley, District Attorney, Mayville (Joseph M. Calimeri of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
David W. Foley, District Attorney, Mayville (Joseph M. Calimeri of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fourth degree ( Penal Law § 220.09[1] ), defendant contends that County Court failed to ensure that he had a full understanding of his plea, and that his plea therefore was not knowing, voluntary and intelligent. Defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review (see People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 ; People v. Harrison, 4 A.D.3d 825, 826, 771 N.Y.S.2d 448, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919 ). Furthermore, the narrow exception to the preservation rule does not apply because defendant said nothing during the plea colloquy that "clearly casts significant doubt upon [his] guilt or otherwise calls into question the voluntariness of the plea" ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Bishop, 115 A.D.3d 1243, 1244, 982 N.Y.S.2d 644, lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280 ). In any event, the record demonstrates that defendant's plea was knowing, voluntary and intelligent (see People v. Cox, 111 A.D.3d 1310, 1310, 974 N.Y.S.2d 829, lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 ; People v. Weakfall, 108 A.D.3d 1115, 1116, 969 N.Y.S.2d 655, lv. denied 21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 ; see generally People v. Seeber, 4 N.Y.3d 780, 781–782, 793 N.Y.S.2d 826, 826 N.E.2d 797 ). Contrary to defendant's contention, "there is no requirement that defendant recite the underlying facts of the crime to which he is pleading guilty" ( People v. Bailey, 49 A.D.3d 1258, 1259, 852 N.Y.S.2d 892, lv. denied 10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404 ).
The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.