Opinion
112198
03-17-2022
The PEOPLE of the State of New York, Respondent, v. John D. ROSARIO, Appellant.
Erin C. Morigerato, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (John D. Kelley of counsel), for respondent.
Erin C. Morigerato, Albany, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John D. Kelley of counsel), for respondent.
Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered March 8, 2019, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.
Defendant was charged in a three-count indictment with attempted murder in the second degree, attempted assault in the first degree and assault in the second degree stemming from an incident in a grocery store parking lot wherein defendant approached a vehicle and shot an occupant in the arm. Pursuant to a negotiated plea agreement, defendant pleaded guilty to attempted assault in the first degree in full satisfaction of the indictment. County Court sentenced defendant, in accord with the terms of the plea agreement, to a prison term of 12 years followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that his plea was not voluntarily entered and that he received ineffective assistance of counsel. Defendant's contentions are not preserved for our review as the record does not reflect that defendant made an appropriate postallocution motion despite an opportunity to do so (see People v. Dickerson, 198 A.D.3d 1190, 1192–1194, 156 N.Y.S.3d 526 [2021] ; People v. Sydlosky, 181 A.D.3d 1094, 1094–1095, 118 N.Y.S.3d 453 [2020] ; People v. Tariq, 166 A.D.3d 1248, 1248, 88 N.Y.S.3d 275 [2018], lvs denied 32 N.Y.3d 1173, 1178, 97 N.Y.S.3d 610, 615, 121 N.E.3d 238, 243 [2019]). Further, we are unpersuaded that the narrow exception to the preservation rule was implicated as defendant did not make any "statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea" ( People v. Daniels, 193 A.D.3d 1179, 1180, 146 N.Y.S.3d 680 [2021] [internal quotation marks, brackets and citations omitted]; see People v. Velazquez, 194 A.D.3d 1181, 1183, 147 N.Y.S.3d 253 [2021], lv denied 37 N.Y.3d 995, 152 N.Y.S.3d 402, 174 N.E.3d 342 [2021] ).
To the extent that defendant made statements for the first time to the Probation Department that he was "hearing voices" at the time of the subject offense, "County Court was under no obligation to conduct any further inquiry in response to this belated, postplea assertion," particularly given that defendant subsequently acknowledged during the probation interview that any mental health issues were self-diagnosed ( People v. Allen, 166 A.D.3d 1210, 1210–1211, 85 N.Y.S.3d 803 [2018] [internal quotation marks and citations omitted], lvs denied 32 N.Y.3d 1201, 1206, 99 N.Y.S.3d 198, 251, 122 N.E.3d 1111, 1163 [2019]; see People v. Jackson, 159 A.D.3d 1276, 1276–1277, 73 N.Y.S.3d 676 [2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ; People v. Osman, 151 A.D.3d 494, 494–495, 58 N.Y.S.3d 8 [2017], lv denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ). We have reviewed defendant's contention that the statutorily-permissible sentence was harsh and excessive and find no abuse of discretion or extraordinary circumstances warranting a reduction of the agreed-upon sentence in the interest of justice (see People v. Warner, 194 A.D.3d 1098, 1106, 147 N.Y.S.3d 234 [2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 438 [2021] ).
Lynch, Pritzker, Colangelo and McShan, JJ., concur.
ORDERED that the judgment is affirmed.