Opinion
05-30-2017
The PEOPLE of the State of New York, Respondent, v. Jose HERRERA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.
ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered February 28, 2014, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.
Because defendant had an opportunity to move to withdraw his plea, but did not do so, his challenge to the voluntariness of the plea is unpreserved (see People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and we decline to review it in the interest of justice. The narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ) does not apply, because "[d]efendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification [or intoxication] defense" (People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ). As an alternative holding, we find that the sentencing court had no obligation to conduct a sua sponte inquiry into postplea statements by defendant that were reflected in the presentence report (see e.g. People v. Bryan, 129 A.D.3d 524, 10 N.Y.S.3d 428 [1st Dept.2015], lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ). In any event, there is no indication in the postplea statements, or elsewhere in the record, to suggest that defendant had any viable defenses.