| People v McKenzie |
| 2012 NY Slip Op 06086 [98 AD3d 749] |
| August 29, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael A. McKenzie, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from (1) a judgment of the Supreme Court, Suffolk County (R.Doyle, J.), rendered January 26, 2011, convicting him of manslaughter in the first degree underIndictment No. 1338/09, upon his plea of guilty, and sentencing him to a determinate term of 25years imprisonment plus a five-year period of postrelease supervision, and (2) an amendedjudgment of the same court, also rendered January 26, 2011, revoking a sentence of probationpreviously imposed by the Supreme Court, Kings County (Mangano, Jr., J.), upon a finding thathe had violated a condition thereof, upon his admission, and imposing sentence upon hisprevious conviction of robbery in the second degree under indictment No. 8004/09.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by reducing the sentence imposed from a determinate term of imprisonment of 25years plus a five-year period of postrelease supervision to a determinate term of imprisonment of20 years plus a five-year period of postrelease supervision; as so modified, the judgment isaffirmed; and it is further,
Ordered that the amended judgment is affirmed.
The defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Bradshaw, 18 NY3d257, 265 [2011]; People vLopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, 283 [1992];cf. People v Ramos, 7 NY3d737 [2006]; People v Seaberg, 74 NY2d 1, 11 [1989]).
The defendant failed to preserve for appellate review his challenge to the validity of his pleaof guilty since he failed to move to withdraw his plea prior to sentencing (see CPL470.05 [2]; People v Toxey, 86 NY2d 725 [1995]; People v McCallum, 84 AD3d 1117 [2011]; People v Ingram, 80 AD3d 713[2011]; People v Rojas, 74 AD3d1369 [2010]; People v Colston,68 AD3d 1130 [2009]). Moreover, the rare exception to the preservation requirement isinapplicable (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Scivolette, 80 AD3d 630,631 [2011]). In any event, any defect in the factual allocution did not render the plea unknowing,involuntary, improvident, or baseless (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Johnson, 73 AD3d 951[2010]; People v Guerrero, 307 AD2d 935, 936 [2003]; People v [*2]Winbush, 199 AD2d 447, 448 [1993]). Moreover, because thedefendant pleaded guilty to a lesser crime than the crimes charged in the indictment and since theallocution establishes that the defendant understood the charges against him, a factual basis forthe plea was unnecessary (see People v Moore, 71 NY2d 1002, 1006 [1988]; People vClairborne, 29 NY2d 950 [1972]; People v Mayo, 77 AD3d 683 [2010]; People v Billings, 60 AD3d 961[2009]; People v Richardson, 50AD3d 704 [2008]).
The Supreme Court erred in imposing a sentence of imprisonment of 25 years upon thedefendant's conviction of manslaughter in the first degree, which was five years more than the20-year term of imprisonment promised at the plea proceeding, without first giving the defendantan opportunity to withdraw his plea (seePeople v Muhammad, 47 AD3d 951 [2008]). Under the circumstances of this case,including the People's consent to a modification of the sentence by reducing the term ofimprisonment from 25 years to 20 years, we reduce the sentence imposed to conform with theplea agreement.
The defendant's remaining contention is without merit. Angiolillo, J.P., Belen, Lott andMiller, JJ., concur.