| People v Kettermann |
| 2008 NY Slip Op 08981 [56 AD3d 323] |
| November 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alfred Kettermann, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Lauren S. Littman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered February22, 2007 (as amended April 26, 2007), convicting defendant, upon his plea of guilty, of grandlarceny in the second degree and burglary in the third degree, and sentencing him, as a secondfelony offender, to an aggregate term of 4½ to 9 years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The circumstantial evidence in the possession of thepolice was sufficient to establish probable cause, which does not require proof beyond areasonable doubt (see Brinegar v United States, 338 US 160, 175 [1949]; People vBigelow, 66 NY2d 417, 423 [1985]). In investigating the nighttime burglary of an office, thepolice were aware that there was no forced entry, that the office was accessible by punching acode on a keypad, that defendant knew this code, that defendant had been recently dischargedfrom a job that had included cleaning that particular office, that he had been seen in the building'slobby at 11:00 p.m. on the night of the burglary, and that he was on parole.
Since defendant did not move to withdraw his guilty plea, and since this case does not comewithin the narrow exception to the preservation requirement (see People v Lopez, 71NY2d 662 [1988]), his challenge to the validity of the plea is unpreserved and we decline toreview it in the interest of justice. As an alternative holding, we also reject it on the merits. Therecord establishes that defendant's plea was knowing, intelligent and voluntary and there wasnothing in the plea allocution that cast significant doubt on his guilt (see People v Toxey,86 NY2d 725 [1995]). The requisite elements could be readily inferred from defendant'sresponses during the allocution (see People v McGowen, 42 NY2d 905 [1977]; see also People v Seeber, 4 NY3d780, 781 [2005]). Concur—Saxe, J.P., Nardelli, Moskowitz, Renwick and Freedman,JJ.