Opinion
2015-04-22
The PEOPLE, etc., respondent, v. Tyron LOVICK, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Avshalom Yotam of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Avshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Foley, J.), rendered June 14, 2013, convicting him of robbery in the first degree and assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his recitation of the facts underlying his plea of guilty to assault in the first degree negated the intent element of that offense ( see Penal Law § 120.10[1] ) and that the Supreme Court's further inquiry into the facts did not cure this defect. Contrary to the People's contention, this argument was not waived by any valid waiver of the defendant's right to appeal, because it implicates the voluntariness of the defendant's plea ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). However, the People correctly contend that, since the court conducted a further inquiry into the facts, and since the defendant did not challenge this remedial action, his present contention is unpreserved for appellate review ( see People v. Lopez, 71 N.Y.2d at 668, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Antoine, 59 A.D.3d 560, 872 N.Y.S.2d 283). In any event, the contention is without merit because the defendant's intent to cause serious physical injury ( see Penal Law § 120.10[1] ) can readily be inferred from the conduct to which the defendant admitted during the court's further inquiry into the facts and from the surrounding circumstances ( see People v. Ramos, 19 N.Y.3d 133, 946 N.Y.S.2d 83, 969 N.E.2d 199; People v. Sidberry, 99 A.D.3d 818, 818–819, 951 N.Y.S.2d 757; People v. Moore, 89 A.D.3d 769, 769–770, 931 N.Y.S.2d 886; People v. Gill, 20 A.D.3d 434, 435, 798 N.Y.S.2d 507).
The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive ( see People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).