| People v Madison |
| 2010 NY Slip Op 02218 [71 AD3d 1422] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v OrtezMadison, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May24, 2006. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree and criminal possession of a weapon in the second 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 ofrobbery in the first degree (Penal Law § 160.15 [1]) and criminal possession of a weaponin the second degree (§ 265.03 [former (2)]). We reject the contention of defendant that hisplea was not voluntarily, knowingly and intelligently entered because he was not informed at thetime of the plea that his sentence would include a period of postrelease supervision. AlthoughCounty Court failed to advise defendant at the time of the plea that a period of postreleasesupervision would be imposed, the record establishes that the court, upon recognizing itsomission, brought defendant back to court several hours later and informed him that his sentencewould include a five-year period of postrelease supervision. Defense counsel stated at that timethat he had already informed defendant that a mandatory period of postrelease supervision wouldbe imposed and defendant, upon questioning by the court, indicated that such information did notaffect his willingness to adhere to the plea agreement. We thus conclude under the circumstancesof this case that defendant had the requisite notice that a period of postrelease supervision wouldbe imposed and an opportunity to withdraw his plea (see People v Padilla, 50 AD3d 928, 929 [2008], lv denied10 NY3d 938 [2008]; cf. People vLouree, 8 NY3d 541 [2007]).
Defendant further contends that the plea was not voluntarily, knowingly and intelligentlyentered because he did not recite the facts underlying the crimes charged. That contention,however, is actually a challenge to the factual sufficiency of the plea allocution, and defendantfailed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665[1988]). In any event, that contention is without merit inasmuch as "there is no requirement thata defendant personally recite the facts underlying his or her crime[s]" (People v Kinch,237 AD2d 830, 831 [1997], lv denied 90 NY2d 860 [1997]; see People v Bailey, 49 AD3d1258 [2008], lv denied 10 NY3d 932 [2008]). Contrary to defendant's contention,this case does not fall within the narrow exception to the preservation requirement (seeLopez, 71 NY2d at 666). When asked by the court whether he committed the [*2]underlying acts, defendant responded in the affirmative (see People v Aguayo, 37 AD3d1081 [2007], lv denied 8 NY3d 981 [2007]; People v Whipple, 37 AD3d 1148 [2007]), and "he made nostatement negating his guilt or any essential element of the crime" (People v Spickerman,307 AD2d 774, 775 [2003], lv denied 100 NY2d 624 [2003]).
We also reject the contention of defendant that the court erred in determining that defendantvoluntarily waived his Miranda rights prior to making certain statements to the policeand thus erred in refusing to suppress those statements. The record of the suppression hearingestablishes that, when a detective asked defendant whether he understood his Mirandarights as read to him by the detective, defendant nodded his head to indicate that he understoodthem and then proceeded to answer questions concerning the crimes (see People v Brand, 13 AD3d820, 822-823 [2004], lv denied 4 NY3d 851 [2005]; People v John, 288AD2d 848 [2001], lv denied 97 NY2d 705 [2002]; People v Goncalves, 288AD2d 883, 884 [2001], lv denied 97 NY2d 729 [2002]).
Finally, we conclude that the court properly refused to suppress the identification ofdefendant by a witness at a showup procedure conducted approximately 15 minutes after theshooting, as well as the victim's identification of him from a photo array. The showup wasconducted in geographical and temporal proximity to the crime (see People v Newton, 24 AD3d1287, 1288 [2005], lv denied 6 NY3d 836 [2006]), and neither identificationprocedure was unduly suggestive (seePeople v Webb, 60 AD3d 1291, 1293 [2009], lv denied 12 NY3d 930 [2009]).Present—Smith, J.P., Peradotto, Lindley, Green and Gorski, JJ.