Opinion
July 9, 1999
Appeal from Judgment of Ontario County Court, Harvey, J. — Sexual Abuse, 1st Degree.
PRESENT: GREEN, J. P., HAYES, PIGOTT, JR., CALLAHAN AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to two counts of sexual abuse in the first degree (Penal Law § 130.65). The record supports County Court's determination that defendant's oral statements to the police were spontaneous and not the result of police interrogation or its functional equivalent ( see, People v. Rivers, 56 N.Y.2d 476, 479-480, rearg denied 57 N.Y.2d 775; People v. Lipscomb, 214 A.D.2d 970, lv denied 86 N.Y.2d 797, cert denied 516 U.S. 1078). The record also supports the court's determination that defendant, despite his intellectual limitations, knowingly, intelligently and voluntarily waived his Miranda rights ( see, People v. Williams, 62 N.Y.2d 285, 287; People v. Ras, 244 A.D.2d 938, lv denied 91 N.Y.2d 929). Defendant has failed to preserve for our review his challenge to the factual sufficiency of the plea allocution ( see, People v. Lopez, 71 N.Y.2d 662, 665; People v. Williams, 258 A.D.2d 942 [decided Feb. 10, 1999], lv denied 93 N.Y.2d 880; People v. Francis, 254 A.D.2d 779, lv denied 92 N.Y.2d 1031; People v. Stabley, 233 A.D.2d 958, lv denied 89 N.Y.2d 930) The agreed-upon sentence, which is less than the maximum permissible, is neither unduly harsh nor severe.