Opinion
976 KA 18-02427
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Melwin ROSARIO, also known as Melwin Rosario Castro, Defendant-Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ), defendant contends that the plea was not voluntarily, knowingly, and intelligently entered. Defendant failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction and, contrary to defendant's assertion, this case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Tapia , 158 A.D.3d 1079, 1080, 70 N.Y.S.3d 309 [4th Dept.. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ). Even assuming, arguendo, that defendant's statements during the plea colloquy "clearly cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea," we conclude on this record that County Court fulfilled its "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" ( Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see Tapia , 158 A.D.3d at 1080, 70 N.Y.S.3d 309 ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.