| People v Smith |
| 2008 NY Slip Op 08557 [56 AD3d 894] |
| November 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Wayne L.Smith, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered November 14, 2006, convicting defendant upon his plea of guilty of the crimes of rapein the first degree, criminal sexual act in the first degree, assault in the first degree (two counts),burglary in the first degree and criminal mischief in the fourth degree.
Defendant was charged in a six-count indictment with rape in the first degree, criminalsexual act in the first degree, assault in the first degree (two counts), burglary in the first degreeand criminal mischief in the fourth degree stemming from an incident wherein defendant, amongother things, sexually assaulted and beat his former girlfriend causing her to sustain a laceratedspleen, a punctured lung and broken ribs. After twice rejecting plea offers, defendant ultimatelypleaded guilty to all counts in exchange for agreed-upon sentences. Defendant thereafter wassentenced in accordance with the plea agreement to concurrent five-year terms of imprisonmenton the first five counts of the indictment, together with five years of postrelease supervision andone year in the local jail for the misdemeanor count, with the latter term to be merged with theremaining concurrent sentences. This appeal by defendant ensued.
We affirm. Inasmuch as defendant did not move to withdraw his plea or vacate the [*2]judgment of conviction, his challenges to the voluntariness of hisplea and the factual sufficiency of the allocution have not been preserved for our review (see People v Corbett, 52 AD3d1023, 1024 [2008]; People vDouglas, 38 AD3d 1063 [2007], lv denied 9 NY3d 843 [2007]). Moreover, thenarrow exception to the preservation requirement is not triggered here as defendant did not makeany statements during his plea allocution that were inconsistent with his guilt (see People v Robles, 53 AD3d686, 687 [2008], lv denied 11 NY3d 794 [2008]). Were we to reach defendant'sargument, we would find it to be lacking in merit, as a review of the plea colloquy reveals thatdefendant was apprised of his rights, evidenced an understanding thereof, denied that he had beenthreatened or coerced, stated that he had sufficient time to confer with counsel and indicated thathe wished to plead guilty. Finally, contrary to defendant's assertion, he was not required to recitethe elements of the crimes charged (seePeople v Singletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741[2008]), as his affirmative responses to County Court's inquiries and his description of theunderlying crimes were sufficient to establish the elements of the crimes charged (see Peoplev Corbett, 52 AD3d at 1024).
As for defendant's contention that he was denied the effective assistance of counsel, his"failure to move to withdraw the plea or vacate the judgment of conviction serves as a bar to thischallenge as well" (People vMcEnteggart, 26 AD3d 643, 643 [2006], lv denied 7 NY3d 759 [2006]; seePeople v Robles, 53 AD3d at 687; People v Farrington, 51 AD3d 1221, 1222 [2008], lv denied11 NY3d 736 [2008]). In any event, were this issue properly before us, we would find it to beunavailing. Defendant's primary contention—that he had insufficient opportunity todiscuss his plea with counsel prior to the allocution—is belied by the plea minutes,wherein County Court specifically asked defendant if he had "all the time [he] need[ed]" todiscuss his case with defense counsel, and defendant responded affirmatively. Defendant'sremaining arguments on this point concern matters outside the record and, as such, are moreproperly the subject of a CPL article 440 motion (see People v Corbett, 52 AD3d at 1024;People v Feliz, 51 AD3d 1278,1279 [2008]). We have reviewed defendant's remaining contentions, including those advanced inhis pro se brief, and find them to be lacking in merit.
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.