Opinion
04-28-2016
The PEOPLE of the State of New York, Respondent, v. SHIGETAKA OGIHARA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered October 28, 2014, convicting defendant, upon his plea of guilty, of grand larceny in the first degree, and sentencing him to a term of three to nine years, unanimously affirmed.
Defendant's challenge to his plea does not come within the narrow exception to the preservation requirement (see People v. Conceicao, 26 N.Y.3d 375, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]; People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert. denied sub nom. Thomas v. New York, 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ), and we decline to review this unpreserved claim in the interest of justice. As an alternate holding, we find no basis for reversal.
Defendant's factual allocution established all of the elements of first-degree grand larceny, and during the allocution itself defendant said nothing that negated any element, raised any defense, or cast any doubt on his guilt (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ). In the allocution, defendant, who was then an attorney (see Matter of Ogihara, 121 A.D.3d 47, 989 N.Y.S.2d 853 [1st Dept.2014] ), expressly admitted he stole $1.8 million from a client by wrongfully transferring the money “with the intent to appropriate those funds to a third person.” Defendant's assertion that he did not intend to permanently misappropriate the money is based entirely on matters that were alluded to outside the allocution, and thus did not require a sua sponte inquiry by the court (see e.g. People v. Praileau, 110 A.D.3d 415, 971 N.Y.S.2d 533 [1st Dept.2013], lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ). In any event, defendant's claimed defense is unavailing (see People v. Argentieri, 66 A.D.3d 558, 559, 887 N.Y.S.2d 568 [1st Dept.2009], lv. denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010]; People v. Mishkin, 134 A.D.2d 529, 521 N.Y.S.2d 296 [2d Dept.1987], lv. denied 71 N.Y.2d 900, 527 N.Y.S.2d 1009, 523 N.E.2d 316 [1988] ).
We perceive no basis for reducing the sentence.
TOM, J.P., MAZZARELLI, FRIEDMAN, RICHTER, KAHN, JJ., concur.