| People v Gallo |
| 2010 NY Slip Op 03955 [73 AD3d 804] |
| May 4, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James A. Gallo, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered January 8, 2009, convicting him of criminal possession of a controlled substance in thefifth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the plea allocution was factually insufficient is unpreservedfor appellate review, as he failed to move to either withdraw his plea on this ground prior tosentencing or to vacate the judgment pursuant to CPL 440.10 (see CPL 470.05 [2];People v Toxey, 86 NY2d 725 [1995]; People v Elcine, 43 AD3d 1176 [2007]; People v Swanton, 27 AD3d 591[2006]; People v Huchital, 22AD3d 681 [2005]). The narrow exception to the preservation rule, which arises when thedefendant's plea recitation of the facts underlying the crime casts significant doubt on guilt(see People v Lopez, 71 NY2d 662 [1988]), is inapplicable in this case.
The defendant's contention that his plea of guilty should be vacated because it was notknowingly, voluntarily, and intelligently made, and that the County Court should not haveaccepted it without holding a hearing on his competence, is without merit. Although thedefendant had been released from the Mid-Hudson Forensic Psychiatric Center shortly before heentered his plea of guilty, there is no basis in the record to support the conclusion that, at thetime of the plea proceeding, he lacked the capacity to understand the proceeding, or that he wasunable to assist in his defense (see CPL 730.30 [1]; People v Hollis, 204 AD2d569 [1994]). The responses made by the defendant at the plea and sentencing proceedings wereappropriate and did not indicate that he was incapacitated (see People v Pryor, 11 AD3d 565 [2004]; People vHansen, 269 AD2d 467 [2000]). Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ.,concur.