| People v Garbarini |
| 2009 NY Slip Op 05450 [64 AD3d 1179] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Leon F.Garbarini, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), renderedMarch 13, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in thethird 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 ofburglary in the third degree (Penal Law § 140.20). Defendant failed to move to withdrawhis plea or to vacate the judgment of conviction, and thus he failed to preserve for our review hiscontention that County Court erred in sentencing him after he made an exculpatory statement atthe sentencing hearing (see People v Lopez, 71 NY2d 662, 665 [1988]; People vSciascia, 302 AD2d 980 [2003], lv denied 100 NY2d 645 [2003]). In any event, thatcontention lacks merit. The plea allocution established defendant's guilt, and we note that thecourt had no obligation to conduct a sua sponte inquiry in response to defendant's statement atsentencing (see People vFrempong, 51 AD3d 506 [2008], lv denied 11 NY3d 736 [2008]; People v Sands, 45 AD3d 414,415 [2007], lv denied 10 NY3d 816 [2008]; People v Jackson, 273 AD2d 937[2000], lv denied 95 NY2d 906 [2000]). Indeed, "[t]he court's duty to inquire [is] nottriggered by statements [that a] defendant may have made at junctures other than the pleaproceeding itself" (Sands, 45 AD3d at 415). Defendant also failed to preserve for ourreview his further contention that the court erred in permitting the prosecutor to conduct aportion of the plea allocution and, in any event, that contention is also without merit (seePeople v Swontek [appeal No. 1], 289 AD2d 989 [2001], lv denied 97 NY2d 762[2002]; People v Smith, 288 AD2d 931, 931 [2001]). Present—Scudder, P.J.,Smith, Centra, Peradotto and Green, JJ.