Opinion
73 KA 19-02104
03-11-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MARINO PADILLA, DEFENDANT-APPELLANT.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (ERICH D. GROME OF COUNSEL), FOR RESPONDENT.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (ERICH D. GROME OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered September 10, 2019. The judgment convicted defendant, upon a plea of guilty, of assault in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (Penal Law § 120.05 [7]). Defendant's challenges to the voluntariness of his guilty plea are unpreserved, and the narrow exception to the preservation requirement set forth in People v Lopez (71 N.Y.2d 662, 666 [1988]) does not apply in this case (see People v Padilla, 151 A.D.3d 1700, 1700-1701 [4th Dept 2017], lv denied 31 N.Y.3d 1016 [2018]; see generally People v Peque, 22 N.Y.3d 168, 182 [2013], cert denied 574 U.S. 840 [2014]). We note in that regard that, contrary to defendant's assertion, "serious physical injury" is not an element of the crime to which he pleaded guilty (see § 120.05 [7]). Moreover, defendant's "assertion that his allocution failed to affirmatively establish each element of the crime[ to which he pleaded guilty] 'is not a recognized ground for vacating a guilty plea'" (People v Rathburn, 178 A.D.3d 1421, 1422 [4th Dept 2019], lv denied 35 N.Y.3d 944 [2020]; see People v Goldstein, 12 N.Y.3d 295, 300-301 [2009]; People v Gulbin, 165 A.D.3d 1611, 1612 [4th Dept 2018], lv denied 32 N.Y.3d 1172 [2019]; People v Madden, 148 A.D.3d 1576, 1578 [4th Dept 2017], lv denied 29 N.Y.3d 1034 [2017]).