Opinion
583 KA 18–00175
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Joshua M. THIBAULT, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt 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, inter alia, criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). Defendant's contention that his guilty plea was not knowing, voluntary, and intelligent is not preserved for our review because he did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Rojas, 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ). Defendant likewise failed to preserve for our review his contention that the plea allocution is factually insufficient (see People v. Abdallah, 23 A.D.3d 1116, 1116, 803 N.Y.S.2d 484 [4th Dept. 2005], lv denied 6 N.Y.3d 845, 816 N.Y.S.2d 751, 849 N.E.2d 974 [2006] ). Contrary to defendant's further contention, "this case does not fall within the rare exception to the preservation requirement because nothing in the plea allocution calls into question the voluntariness of the plea or casts ‘significant doubt’ upon his guilt" ( People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014], quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to exercise our power to review defendant's contentions as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ; People v. Dixon, 147 A.D.3d 1518, 1519, 47 N.Y.S.3d 617 [4th Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ).
Finally, we reject defendant's contention that the period of postrelease supervision imposed is unduly harsh and severe (see People v. Osteen, 145 A.D.3d 1515, 1517, 44 N.Y.S.3d 650 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ).