| People v Jones |
| 2010 NY Slip Op 04470 [73 AD3d 1386] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Santonio J.Jones, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered November 10, 2008, convicting defendant upon his plea of guilty of the crimes of grandlarceny in the fourth degree and aggravated driving while intoxicated.
In full satisfaction of a four-count indictment, defendant pleaded guilty to grand larceny inthe fourth degree and aggravated driving while intoxicated. The charges stemmed from his arrestfor driving with a blood alcohol level of .21% and being in possession of the victim's credit card.Defendant was thereafter sentenced pursuant to the plea agreement to a prison term of 1½to 4 years. Defendant now appeals.
We affirm. Defendant contends that his plea should be vacated due to County Court's failureto make a sufficient inquiry during the plea allocution as to whether he affirmatively waived thedefense of intoxication. As defendant did not move to withdraw his plea or vacate his judgmentof conviction, his contention is not preserved for review (see People v Phillips, 30 AD3d 911, 911 [2006], lv denied7 NY3d 869 [2006]). Furthermore, defendant's factual recitation did not cast doubt on his guilt ornegate an essential element of the crime so as to either trigger the narrow exception to thepreservation rule or obligate County Court to inquire whether defendant was aware of a potentialintoxication defense (see People v Beach, 306 AD2d 753, 754[*2][2003]). Contrary to defendant's contention, the required intentelement of the crime of grand larceny in the fourth degree (see Penal Law §155.05 [2]; § 155.30 [4]) was not negated by his statements, as he admitted duringallocution that it was his intent, when he found the victim's credit card the day of the crimes, tokeep the card and use it himself. Further, defendant did not, at any time during the pleaallocution, claim that his intoxication prevented him from remembering his participation in thecrime. Under the circumstances, we conclude that County Court had no duty to further inquireinto whether defendant had considered a potential intoxication defense (see People v Wagoner, 30 AD3d629, 630 [2006]; People vLasher, 14 AD3d 943, 943 [2005]; People v Mahar, 12 AD3d 715, 716 [2004]; People vJaworski, 296 AD2d 597, 598 [2002]).
Mercure, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.