Opinion
07-03-2024
The PEOPLE of the State of New York, Respondent, v. Glenn W. HARPER, Defendant-Appellant.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (William K. Taylor, J.), rendered August 23, 2018. The judgment convicted defendant upon a guilty plea of assault in the second degree, grand larceny in the fourth degree, criminal obstruction of breathing and blood circulation and menacing in the second degree.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, assault in the second degree (Penal Law § 120.05 [12]). Defendant contends that the guilty plea was improperly entered because information in the presentence report and statements defendant made at sentencing should have led Supreme Court to conduct an inquiry into defendant’s mental health condition. That contention is not preserved for our review inasmuch as defendant did not move to withdraw the plea or to vacate the judgment of conviction, and the narrow exception to the preservation rule set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) does not apply here (see People v. Brown, 204 A.D.3d 1519, 1519, 167 N.Y.S.3d 293 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 456, 191 N.E.3d 408 [2022]; People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018]). Contrary to defendant’s contention, "a trial court has no duty, in the absence of a motion to withdraw a guilty plea, to conduct a further inquiry concerning the plea’s involuntariness ‘based on comments made by [the] defendant during … sentencing’ " (Brown, 204 A.D.3d at 1519, 167 N.Y.S.3d 293; see People v. Garcia-Cruz, 138 A.D.3d 1414, 1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016]) or based on information in a presentence report (see People v. Wilson, 197 A.D.3d 1006, 1007, 153 N.Y.S.3d 371 [4th Dept. 2021], lv denied 37 N.Y.3d 1100, 156 N.Y.S.3d 780, 178 N.E.3d 427 [2021]; People v. McMillian, 185 A.D.3d 1420, 1421, 127 N.Y.S.3d 669 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 [2020]; Garcia-Cruz, 138 A.D.3d at 1415, 30 N.Y.S.3d 427). Moreover, nothing in the presentence report or statements defendant made at sentencing called into doubt the voluntariness of the plea (see generally Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). Finally, we reject defendant’s contention that the sentence is unduly harsh and severe.