| People v Garrett |
| 2009 NY Slip Op 02148 [60 AD3d 1389] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WillieGarrett, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), renderedJanuary 9, 2006. The judgment convicted defendant, upon his plea of guilty, of murder 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 ofmurder in the second degree (Penal Law § 125.25 [3]). Defendant failed to preserve forour review his challenge to the voluntariness of the plea inasmuch as he failed to move towithdraw the plea or to vacate the judgment of conviction (see People v Kuras, 49 AD3d1196, 1197 [2008], lv denied 10 NY3d 866 [2008]; People v Lacey, 49 AD3d1259 [2008], lv denied 10 NY3d 936 [2008]). Defendant contends that this case fallswithin the narrow exception to the preservation doctrine set forth in People v Lopez (71NY2d 662, 666 [1988]) because County Court failed to conduct a sufficient inquiry on the issueswhether defendant was on medication at the time of the plea and whether he had an intoxicationdefense, to ensure that the plea was knowingly, voluntarily, and intelligently entered. Weconclude, however, that the court had no duty to conduct such an inquiry inasmuch as "nothingin the plea allocution cast significant doubt on defendant's guilt or otherwise called into questionthe voluntariness of the plea," and thus the narrow exception to the preservation doctrine doesnot apply (Lacey, 49 AD3d at 1260; see generally Lopez, 71 NY2d at 666;People v Maysonet, 38 AD3d 1330 [2007], lv denied 9 NY3d 847 [2007]). Whenthe court asked defendant during the plea colloquy if he had any physical or mental problems,defendant responded "[n]ah." As the court noted, defendant's responses during the pleaallocution established that defendant understood the terms and consequences of the plea (seegenerally People v Forshey, 298 AD2d 962, 963 [2002], lv denied 99 NY2d 558,100 NY2d 561 [2002]). On appeal, defendant relies solely on information in the presentencereport that he was prescribed an antidepressant four years before his commission of the offensein question, and that he reported to the probation officer that he was high on marihuana at thetime of the offense. We note, however, that there was no statement in the presentence report thatdefendant's marihuana use at the time of the offense rendered defendant unable to form the intentnecessary for the commission of the offense (see People v Jordan, 292 AD2d 860[2002], lv denied 98 NY2d 698 [2002]). Present—Hurlbutt, J.P., Martoche,Centra, Peradotto and Gorski, JJ.