Opinion
2014-05-9
The PEOPLE of the State of New York, Respondent, v. Thomas J. DeMARCO, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of, inter alia, assault in the third degree (Penal Law § 120.00[2] ), defendant contends that his plea was not knowingly, voluntarily or intelligently entered because the factual allocution negated the mental state of recklessness, which is an essential element of the crime of assault in the third degree. Although that contention survives defendant's valid waiver of the right to appeal ( see People v. Theall, 109 A.D.3d 1107, 1107–1108, 971 N.Y.S.2d 753), defendant failed to preserve it for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction ( see id. at 1108, 971 N.Y.S.2d 753;People v. Rossborough, 101 A.D.3d 1775, 1776, 956 N.Y.S.2d 389;People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449). In any event, even assuming, arguendo, that defendant's initial statements during the plea colloquy negated the requisite mens rea and that defendant's contention is properly before us ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5), we conclude that his subsequent statements removed any doubt with respect thereto, and defendant did not make any further protestations of innocence ( see Theall, 109 A.D.3d at 1108, 971 N.Y.S.2d 753;People v. Gardner, 101 A.D.3d 1634, 1634–1635, 956 N.Y.S.2d 367;People v. Trinidad, 23 A.D.3d 1060, 1061, 804 N.Y.S.2d 876,lv. denied6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.