People v. Mahar

15 Citing cases

  1. People v. Kendall

    91 A.D.3d 1191 (N.Y. App. Div. 2012)   Cited 14 times

    tement tending to negate the intent element of the attempted murder charge. However, County Court followed up with pertinent questions, and defendant specifically admitted all elements of the crime of attempted murder in the second degree ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]; People v. Karolys, 85 A.D.3d 1213, 1213, 923 N.Y.S.2d 921 [2011], lv. denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011]; People v. Clavie, 28 A.D.3d 872, 873, 812 N.Y.S.2d 196 [2006] ). Defendant's further assertion that his drug use negated his intent as to all crimes in the May 2008 indictment is unpreserved and, in any event, is unpersuasive in light of his assurance to County Court during the plea allocution that he remembered the relevant details surrounding his participation in the crimes and his recitation of such details ( see People v. Jones, 73 A.D.3d 1386, 1387, 900 N.Y.S.2d 797 [2010]; People v. Lasher, 14 A.D.3d 943, 944, 787 N.Y.S.2d 914 [2005]; People v. Mahar, 12 A.D.3d 715, 716, 783 N.Y.S.2d 705 [2004] ). A sentence generally will not be disturbed on appeal unless the sentencing court abused its discretion or there are extraordinary circumstances warranting a reduction in the interest of justice ( see People v. Welch, 71 A.D.3d 1329, 1332, 897 N.Y.S.2d 546 [2010], lv. denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010]; People v. Perkins, 56 A.D.3d 944, 946, 868 N.Y.S.2d 340 [2008], lv. denied 12 N.Y.3d 786, 879 N.Y.S.2d 63, 906 N.E.2d 1097 [2009] ).

  2. People v. Santonio J. Jones

    73 A.D.3d 1386 (N.Y. App. Div. 2010)   Cited 10 times

    Further, defendant did not, at any time during the plea allocution, claim that his intoxication prevented him from remembering his participation in the crime. Under the circumstances, we conclude that County Court had no duty to further inquire into whether defendant had considered a potential intoxication defense ( see People v Wagoner, 30 AD3d 629, 630; People v Lasher, 14 AD3d 943, 943; People v Mahar, 12 AD3d 715, 716; People v Jaworski, 296 AD2d 597, 598). Ordered that the judgment is affirmed.

  3. People v. Vallance

    49 A.D.3d 917 (N.Y. App. Div. 2008)   Cited 10 times

    Defendant's challenge to the voluntariness of his guilty plea, which survives the waiver of his right to appeal ( see People v Lee, 34 AD3d 982, 982), was not preserved for our review since he failed to move to withdraw the plea or vacate the judgment of conviction ( see People v Scott, 31 AD3d 816, 817). In any event, review of the plea allocution establishes that it was entered into knowingly, intelligently and voluntarily ( see People v Mahar, 12 AD3d 715, 716). Defendant's outburst following the statements of two of the young victims at sentencing, during which he asserted they were lying, does not provide a basis to vacate the plea in the absence of a motion for such relief or a clear protestation of innocence ( see People v Wagoner, 30 AD3d 629, 630). We find no merit in defendant's argument regarding his waiver of his right to appeal. That right was explained during the allocution as a separate and distinct right which was being waived as part of the plea bargain ( see People v Lopez, 6 NY3d 248, 256).

  4. People v. Ellis

    46 A.D.3d 934 (N.Y. App. Div. 2007)   Cited 3 times

    We begin by noting that defendant failed to move to withdraw his plea or vacate the judgment of conviction ( see People v Lewis, 39 AD3d 1025, 1025-1026; People v Threatt, 16 AD3d 706, 707), thus rendering defendant's challenge to the voluntariness of his plea unpreserved for our review. In any event, we are satisfied that defendant's plea was knowingly, intelligently and voluntarily made. A review of the plea colloquy reveals that County Court's factual recitation and defendant's affirmative and unequivocal responses provided a sufficient factual basis for the acceptance of defendant's plea of guilty by County Court ( see People v Threatt, 16 AD3d at 707; People v Mahar, 12 AD3d 715, 716). Furthermore, the fact that County Court did not inform defendant at the time of his plea that he would be subject to the Sex Offender Registration Act (see Correction Law art 6-C) does not undermine the voluntariness of his plea ( see People v Coss, 19 AD3d 943, 943, lv denied 5 NY3d 805; People v Clark, 261 AD2d 97, 100, lv denied 95 NY2d 833). Ordered that the judgment is affirmed.

  5. People v. Bagley

    34 A.D.3d 992 (N.Y. App. Div. 2006)   Cited 12 times

    In addition, his failure to move to withdraw the plea or vacate the judgment of conviction renders the issue as to the voluntariness of his plea unpreserved for our review ( see People v Bennett, 30 AD3d 631, 631, lv denied 7 NY3d 809 ; People v Jones, 30 AD3d 633, 633, lv denied 7 NY3d 849) and the exception to the preservation rule is not applicable inasmuch as defendant made no statements inconsistent with his guilt ( see People v Campbell, 29 AD3d 1083, 1083-1084, lv denied 7 NY3d 786; People v Evans, 27 AD3d 905, 906-907, lv denied 6 NY3d 847). In any event, defendant's responses to County Court's questions during the plea colloquy established the elements of the crime and it was not necessary for defendant to personally recite the underlying facts ( see People v Alexander, supra; People v Mahar, 12 AD3d 715, 716). We also find that, although defendant has some mental health difficulties for which he is receiving medication, the record as a whole reflects that he has demonstrated an ability to manage his mental health symptoms and he was capable of understanding the proceedings against him.

  6. People v. Nugent

    31 A.D.3d 976 (N.Y. App. Div. 2006)   Cited 14 times

    Initially, defendant's challenges to the sufficiency of the plea allocution and the adequacy of County Court's explanation of the consequences of his waiver of the right to appeal are not preserved for our review because of his failure to move to withdraw his plea of guilty or vacate the judgment of conviction. Even if we were to consider these arguments, we would find them to be meritless. It was not necessary that defendant independently recite the facts underlying the crime to which he pleaded guilty and his affirmative response to County Court's description of the crime and inquiry as to whether defendant committed it did not cast doubt on his guilt or the voluntariness of his plea ( see People v Mahar, 12 AD3d 715, 716; People v Snare, 11 AD3d 823, 824, lv denied 4 NY3d 748). Defendant also executed a written general waiver of appeal which clearly explained that he was giving up the right to an appeal which he otherwise would have after pleading guilty. Next, the waiver of the right to appeal, which County Court carefully confirmed, prevents defendant from requesting us to review the severity of his sentence ( see People v Lopez, 6 NY3d 248, 255-256; People v Clow, 10 AD3d 803, 804). Defendant's claim of ineffective assistance of counsel also is unpreserved for our review ( see People v Flood, 16 AD3d 772, 772, lv denied 5 NY3d 788; People v Scott, 12 AD3d 716, 717).

  7. People v. Wagoner

    30 A.D.3d 629 (N.Y. App. Div. 2006)   Cited 19 times

    In our view, defendant's statement at sentencing regarding his troubles — including his cocaine addiction, homelessness and joblessness — constituted no more than an explanation of his motive to steal, rather than a protestation of innocence. Significantly, defendant exhibited his capacity to recollect the details of his crime both in his statement to police following the robbery and during the plea colloquy, and nothing in the record suggests that he did not know what he was doing at the time of the crime or otherwise casts any doubt about his admitted guilt. Under these circumstances, we conclude that County Court had no duty to make further inquiry, conduct a hearing, or sua sponte offer defendant an opportunity to withdraw his plea prior to sentencing defendant in accordance with the plea agreement ( see People v. Mahar, 12 AD3d 715, 716; People v. Beach, 306 AD2d 753, 754; People v. Keyes, 300 AD2d 909, 909-910; People v. Jaworski, 296 AD2d 597, 598; cf. People v. Osgood, 254 AD2d 571, 572; People v. Maldonado, 254 AD2d 574, 574; People v. Jenkins, 72 AD2d 876, 876). Finally, in light of defendant's knowing, voluntary and intelligent guilty plea and appeal waiver, his challenge to the severity of his negotiated sentence is precluded as he has waived his right to invoke our interest of justice jurisdiction ( see People v. Lopez, 6 NY3d 248, 255-256; People v. Clow, 10 AD3d 803, 804-805).

  8. People v. Passino

    25 A.D.3d 817 (N.Y. App. Div. 2006)   Cited 16 times

    We disagree. During the first plea allocution, defendant had a copy of the indictment in front of him while County Court defined the elements and asked him if he had committed the conduct described. Defendant answered in the affirmative each time, thus establishing each element of the crimes for which he was convicted ( see People v. Rivera, supra at 764; People v. Mahar, 12 AD3d 715, 716). Defendant also contends that he should not have been convicted of kidnapping separate from his conviction of rape because the victim's abduction was part of a single criminal transaction.

  9. People v. Crannell

    23 A.D.3d 769 (N.Y. App. Div. 2005)   Cited 8 times

    Thus, this issue is unpreserved for our review ( see People v. Rivera, 20 AD3d 763, 764; People v. Bethea, 19 AD3d 813, 814). In any event, our review of the plea allocution satisfies us that the plea was entered knowingly, voluntarily and intelligently and that defendant's affirmative response to County Court's questioning established a factual basis for the crime of which he was convicted ( see People v. Rivera, supra; People v. Mahar, 12 AD3d 715, 716). Ordered that the judgment is affirmed.

  10. People v. Rivera

    20 A.D.3d 763 (N.Y. App. Div. 2005)   Cited 5 times

    Defendant's challenge to the voluntariness of the plea, while not encompassed by his waiver of the right to appeal, is not preserved for our review inasmuch as he did not move to withdraw the plea or vacate the judgment of conviction ( see People v. Ward, 2 AD3d 1219, 1219, lv denied 2 NY3d 808). The exception to the preservation rule is inapplicable as defendant did not make any statements that were inconsistent with his guilt so as to negate an essential element of the crime ( see People v. Lopez, 71 NY2d 662, 666; People v. Ward, supra at 1219). In any event, there is no requirement that defendant personally recite the facts underlying his crime and defendant's affirmative answers to County Court's questions regarding the underlying facts neither cast doubt on his guilt nor called into question the voluntariness of his guilty plea ( see People v. Mahar, 12 AD3d 715, 716; People v. Pringle, 10 AD3d 802, 803). Defendant's additional claim that defense counsel's failure to inform him of the rights he was giving up undermined the voluntariness of his plea finds no support in the record and, indeed, is belied by defendant's own statements that he had fully discussed his options with his counsel to his satisfaction ( see People v. Wright, 295 AD2d 806, 807; see also People v. Bethea, 19 AD3d 813, 814). Finding no basis for determining that the plea and appeal waiver were other than knowing, voluntary and intelligent, we decline to disturb them ( see People v. Hughes, 3 AD3d 736, 737), and his contention that his sentence was harsh and excessive is precluded by the valid appeal waiver ( see People v. Clow, 10 AD3d 803, 804; People v. Hughes, supra at 737).