Opinion
2015-1315 S CR
07-12-2018
The PEOPLE of the State of New York, Respondent, v. Timothy HICKEY, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Suffolk County District Attorney (Glenn Green of counsel), Riverhead, for respondent.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant.
Suffolk County District Attorney (Glenn Green of counsel), Riverhead, for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment of conviction is affirmed.
According to the accusatory instrument, at approximately 9:50 a.m. on December 4, 2013, at 127 Whitson Road in Huntington, Suffolk County, defendant "kicked open the locked gate" of the premises "and entered the rear yard, which is a gated property, and in doing so did damage the lock latch and slats on the gate." Defendant was charged with criminal mischief in the fourth degree ( Penal Law § 145.00 [1 ] ) and criminal trespass in the third degree ( Penal Law § 140.10 [a] ) in connection with this incident. He was also charged with unlawful fleeing of a police office in a motor vehicle in the third degree ( Penal Law § 270.25 ) and unrelated Vehicle and Traffic Law charges under a separate docket.
Defendant subsequently agreed to plead guilty to the charge of criminal mischief in the fourth degree, and the People agreed that the charge of criminal trespass in the third degree and the offenses charged in the separate docket would be dismissed. After the District Court advised defendant of his rights, defendant stated that he understood that, if his plea were accepted by the court, it would be the same as if he had been found guilty after a trial. Defendant then admitted that, at the time and place charged, he had "damage[d] a lock and slats on the gate of a fence at that location." He also admitted that he did not "have permission to cause that damage." The court accepted the plea and immediately sentenced defendant to a term of 90 days of incarceration. In addition, as part of the sentence, the court issued a five-year final stay-away order of protection against defendant and in favor of the victims.
On appeal, defendant contends that the plea was invalid because he did not admit during the allocution that he had intended to damage the lock and the slats of the gate of the fence. In addition, he claims the District Court did not state the reasons for the issuance of the order of protection, and, thus, the order of protection should be vacated. Defendant recognizes that these claims are unpreserved for appellate review, but argues that he had no practical ability to raise these claims in the District Court because the plea and sentence took place at the same proceeding.
The People contend that defendant's contention regarding the alleged factual insufficiency of the plea allocution is raised for the first time on appeal, and is thus unpreserved for appellate review. The People acknowledge that, notwithstanding the fact that a formal postallocution motion was not made, a defendant may challenge the sufficiency of his plea on direct appeal but only when the defendant's factual recitation negates an essential element of the crime pleaded to, and the court accepts that plea without further inquiry to ensure that the defendant understands the nature of the charges and that his plea is being intelligently made. The People assert that the above principle does not apply in this case, as an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime. The People further argue that defendant's claim with respect to the order of protection is unpreserved for appellate review, and there is no basis for reaching the issue as a matter of discretion in the interest of justice.
As defendant admits, his contention that the plea allocution was factually insufficient because the court did not elicit that he had intended to damage the lock and the gate is unpreserved for appellate review. However, as defendant was sentenced immediately after the plea was accepted by the court, he had no practical ability to move to withdraw his plea pursuant to CPL 220.60 (3), and, thus, his contention qualifies for the "rare case" exception to the preservation requirement ( People v. Lopez , 71 NY2d 662, 666 [1988] ).
We find that defendant's claim regarding his plea is without merit. "[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime. Nor is ‘[t]he court's duty to inquire further ... triggered merely by the failure of a pleading defendant, whether or not represented by counsel, to recite every element of the crime pleaded to’ " ( People v. Goldstein , 12 NY3d 295, 301 [2009], quoting People v. Lopez , 71 NY2d at 666 n 2 ). "It is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea" ( People v. Goldstein , 12 NY3d at 301 ).
During the plea allocution, defendant admitted that, at the time and place charged, he had "damage[d] a lock and slats on the gate of a fence at that location." Nothing in the allocution casts significant doubt on defendant's guilt, negated an essential element of the crime, or called into question the voluntariness of the plea (see People v. Anlyan , 142 AD3d 670, 670-671 [2016] ; People v. Colliton , 130 AD3d 642 [2015] ). Moreover, it was not necessary for the court, during the allocution, to elicit specific admissions as to each element of the crime of criminal mischief in the fourth degree. It is sufficient that the allocution showed that defendant understood the charge and made an intelligent decision to enter a plea (see People v. Goldstein , 12 NY3d at 301 ; People v. Scivolette , 156 AD3d 730 [2017] ; People v. Anlyan , 142 AD3d at 671 ; People v. Bosticco , 52 Misc 3d 140[A], 2016 NY Slip Op 51169[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ).
As defendant did not move to vacate the final order of protection on the ground that the District Court did not articulate the reasons for its issuance of the order of protection, the claim is unpreserved for appellate review (see CPL 470.05 [2 ]; People v. Mitchell , 142 AD3d 1185 [2016] ; People v. O'Connor , 136 AD3d 945 [2016] ), and we decline to reach the issue in the exercise of our interest of justice jurisdiction.
Accordingly, the judgment of conviction is affirmed.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.