| People v Rought |
| 2011 NY Slip Op 09048 [90 AD3d 1247] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Todd A.Rought, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Brian T. Leeds of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered January 12, 2009, convicting defendant upon his plea of guilty of the crimes of courseof sexual conduct against a child in the first degree (two counts), rape in the second degree andendangering the welfare of a child (two counts).
Defendant was charged in an indictment with course of sexual conduct against a child in thefirst degree (two counts), rape in the second degree and endangering the welfare of a child (twocounts). He agreed to plead guilty as charged and was thereafter sentenced pursuant to the pleaagreement to an aggregate prison term of eight years, to be followed by 10 years of postreleasesupervision. Defendant now appeals.
We affirm. Defendant's contentions that his plea was not knowing, voluntary and intelligentdue to mental incompetence and that County Court erred in accepting his plea without holding acompetency hearing pursuant to CPL 730.30 are not preserved for our review in light of hisfailure to move to withdraw his plea or vacate the judgment of conviction (see People v Stoddard, 67 AD3d1055, 1055 [2009], lv denied 14 NY3d 806 [2010]; People v Bennett, 30 AD3d 631,631 [2006], lv denied 7 NY3d 809 [2006]). Moreover, contrary to defendant's assertion,he did not make any statements during the plea allocution that negated an essential element of thecrime or otherwise cast doubt upon his guilt so as to trigger the narrow exception to thepreservation requirement (see People vMcFarren, 83 AD3d 1209, 1209-1210 [2011], lv [*2]denied 17 NY3d 860 [2011]; People v Coons, 73 AD3d 1343,1345 [2010], lv denied 15 NY3d 803 [2010]). In any event, there is no evidence in therecord that defendant lacked the capacity to enter a knowing, voluntary and intelligent plea. Heparticipated in his plea allocution, gave coherent responses to County Court's questions andconfirmed that he understood the proceedings and the ramifications of his guilty plea.Accordingly, were this issue properly before us, we would find no abuse of discretion in thecourt's acceptance of defendant's plea without holding a competency hearing (see People vBennett, 30 AD3d at 631; People vWoodard, 17 AD3d 929, 930 [2005], lv denied 5 NY3d 811 [2005]).
Defendant further contends that the plea colloquy was insufficient due to the failure to advisehim that his potential confinement pursuant to the Sex Offender Management and Treatment Actwas of an indefinite duration (see Mental Hygiene Law art 10). However, and as counselnotes, County Court explicitly informed defendant of the evaluation that would be performed andthe risk of continuing civil confinement, defense counsel stated that he had discussed thispossibility with defendant, and defendant confirmed that he had reviewed the matter with hiscounsel. Accordingly, we do not find the plea involuntary on this ground (see People v Harnett, 16 NY3d200, 207-208 [2011]; People vOkamura, 84 AD3d 1413 [2011], lv denied 17 NY3d 861 [2011]).
Finally, we are unpersuaded by defendant's claim that his sentence was harsh and excessive.Defendant received the bargained-for sentence, and considering the serious nature of the presentoffenses, we perceive no abuse of discretion or extraordinary circumstances warranting amodification of the sentence in the interest of justice (see People v Evans, 81 AD3d 1040, 1041-1042 [2011], lvdenied 16 NY3d 894 [2011]).
Defendant's remaining claims have been addressed and found to be without merit.
Peters, J.P., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.