| People v Clapper |
| 2008 NY Slip Op 04798 [51 AD3d 1336] |
| May 29, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joshua J.Clapper, Appellant. |
—[*1] Gerald A. Keene, District Attorney, Owego, for respondent.
Peters, J. Appeal from a judgment of the County Court of Tioga County (Sgeuglia, J.),rendered December 15, 2006, convicting defendant upon his plea of guilty of the crime ofmanslaughter in the first degree.
Defendant was charged in a four-count indictment with murder in the second degree, assaultin the second degree and endangering the welfare of a child (two counts) following an incidentwherein the two-year-old daughter of defendant's then girlfriend died from complications of blunthead trauma while in defendant's care. Pursuant to a negotiated plea agreement, defendantthereafter pleaded guilty to manslaughter in the first degree in full satisfaction of the indictmentand was sentenced to an agreed-upon term of 17 years in prison followed by five years ofpostrelease supervision. This appeal by defendant ensued.
Inasmuch as defendant admittedly failed to move to withdraw his plea or vacate the judgmentof conviction, his challenge to the voluntariness and sufficiency of the plea has not beenpreserved for our review (see People vWelch, 46 AD3d 1228, 1229 [2007]; People v Pagan, 36 AD3d 1163, 1164 [2007]; People v Phillips, 28 AD3d 939[2006], lv denied 7 NY3d 761 [2006]). Moreover, contrary to defendant's assertion, thenarrow exception to the preservation requirement is not triggered here as defendant did not makeany statements during the plea allocution that cast doubt upon either his guilt or the voluntarinessof his plea or otherwise tended to negate a material element of the crime (see People vLopez, 71 NY2d 662, [*2]666 [1988]; People v Hall, 41 AD3d 1090,1091 [2007], lv denied 9 NY3d 876 [2007]; People v Williams, 25 AD3d 927, 929 [2006], lv denied 6NY3d 840 [2006]). Were we to consider defendant's argument, we nonetheless would concludethat the plea was knowing, intelligent and voluntary as there is nothing in the plea minutes tosuggest that defendant did not comprehend the proceeding or the nature of the charges againsthim, and defendant's responses to the questions posed were sufficient to establish the elements ofmanslaughter in the first degree (seegenerally People v Smith, 2 AD3d 1057, 1058 [2003], lv denied 2 NY3d 746[2004]).
As a final matter, we find no merit to defendant's claim that the sentence imposed was harshand excessive. Defendant was sentenced in accordance with the negotiated plea agreement and,based upon our review of the record as a whole, we perceive neither an abuse of discretion northe existence of any extraordinary circumstances warranting a reduction of the sentence in theinterest of justice (see People v Hall, 41 AD3d at 1091).
Cardona, P.J., Carpinello, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.