Opinion
2017–08464 Ind. No. 9636/15
04-29-2020
The PEOPLE, etc., Respondent, v. Oliver FAREAU, Appellant.
Paul Skip Laisure, New York, N.Y. (Leila Hull of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Song Ji Liu of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Leila Hull of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Song Ji Liu of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant contends that his plea of guilty was not knowingly, voluntarily, and intelligently entered because the Supreme Court failed to inquire about certain statements he made to the probation officer who prepared the presentence report. This contention is unpreserved for appellate review because the defendant did not move to vacate his plea or otherwise raise this issue before the court (see CPL 470.05[2] ; People v. Pastor , 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Anderson , 170 A.D.3d 878, 93 N.Y.S.3d 864 ). The "rare case" exception to the preservation requirement does not apply because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crimes, or call into question the voluntariness of his plea (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the post-plea statements attributed to the defendant in the presentence report did not obligate the court to conduct a sua sponte inquiry into the basis for the plea (see People v. Ospina , 175 A.D.3d 513, 514, 107 N.Y.S.3d 59 ; People v. Anderson , 170 A.D.3d at 878, 93 N.Y.S.3d 864 ; People v. Bailey , 158 A.D.3d 948, 949, 71 N.Y.S.3d 667 ).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit as he failed " ‘to demonstrate the absence of strategic or other legitimate explanations’ for defense counsel's alleged shortcomings at the sentencing proceeding" ( People v. Robinson , 176 A.D.3d 877, 107 N.Y.S.3d 872, quoting People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ).
Contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.