| People v Martin |
| 2008 NY Slip Op 07344 [55 AD3d 1304] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rob T. Martin,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered January17, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in thesecond 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 ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]). Defendantdid not move to withdraw his plea or to vacate the judgment of conviction and thus has failed topreserve for our review his contentions that the plea was not knowingly or voluntarily entered (People v Carmody, 53 AD3d 1048[2008]; People v Grimes, 53 AD3d1055 [2008]), or that the plea allocution was factually insufficient (see People v Lopez, 71NY2d 662, 665 [1988]). This case does not fall within the rare exception to the preservationrequirement (see id. at 666). In any event, defendant's contention that the plea was notknowingly or voluntarily entered lacks merit inasmuch as the record establishes that County Court neverpromised defendant that he would be enrolled in the Comprehensive Alcohol and Substance AbuseTreatment (CASAT) program in the event that he pleaded guilty. In addition, the plea allocution wasfactually sufficient because there is no requirement that a defendant recite the underlying facts of thecrime to which he or she is pleading guilty (see People v Bailey, 49 AD3d 1258 [2008]; People v Bagley, 34 AD3d 992[2006], lv denied 8 NY3d 878 [2007]).
Contrary to the further contention of defendant, the court properly refused to suppress his oral andwritten statements to the police. The record of the suppression hearing supports the court'sdetermination that defendant was not in custody when he was questioned by the police officers at hisgirlfriend's house, and thus Miranda warnings were not required at that time (see People v Towsley, 53 AD3d 1083[2008]; People v Flecha, 43 AD3d1385, 1385-1386 [2007], lv denied 9 NY3d 990 [2007]).
To the extent that the contention of defendant that he was denied his right to effective assistance ofcounsel is not forfeited by the plea (seePeople v Santos, 37 AD3d 1141 [2007], lv denied 8 NY3d 950 [2007]), [*2]it is lacking in merit (see generally People v Ford, 86 NY2d 397,404 [1995]). Defense counsel did not misinform defendant in suggesting to him that he may be eligiblefor participation in the CASAT program (see 7 NYCRR 1900.4 [c] [1] [iii]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Fahey,Peradotto and Green, JJ.