| People v English |
| 2012 NY Slip Op 07714 [100 AD3d 1147] |
| November 15, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James E.English, Appellant. |
—[*1] Gerald A. Keene, District Attorney, Owego (Cheryl A. Mancini of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered March 25, 2011, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.
Following his participation in the break-in of a home to steal drugs, defendant pleaded guiltyin March 2011 to burglary in the second degree in satisfaction of a three-count indictment.Thereafter, he was sentenced as a second felony offender to five years in prison, followed by fiveyears of postrelease supervision. Defendant now appeals.
Defendant first contends that his plea was not knowing, voluntary and intelligent due tostatements he made during his allocution that he did not remember anything about the crime.Initially we note that, as the record does not indicate that defendant either moved to withdraw hisplea or vacate the judgment of conviction, this issue has not been preserved for our review(see People v Lopez, 71 NY2d 662, 665 [1988]; People v Morgan, 84 AD3d 1594, 1594 [2011], lv denied17 NY3d 819 [2011]). In any event, to the extent that defendant's statements may have cast doubton the intent element of the crime, we note that County Court made further inquiry to ensure aknowing and voluntary plea on the part of defendant (see People v Morgan, 84 AD3d at[*2]1594; People v Granan, 48 AD3d 975, 975-976 [2008], lv denied10 NY3d 959 [2008]).[FN*]Inasmuch as defendant failed to express any dissatisfaction with the court's remedial action inthis regard, defendant has waived any further challenge to his allocution (see People vLopez, 71 NY2d at 668; People vKarolys, 85 AD3d 1213 [2011], lv denied 17 NY3d 818 [2011]; People vGranan, 48 AD3d at 976).
Similarly, defendant has failed to preserve his assertion that County Court did not make anadequate inquiry into a potential intoxication defense in the absence of a motion to withdraw theplea or vacate the judgment on that ground (see People v Morgan, 84 AD3d 1594, 1594 [2011]; People v Campbell, 81 AD3d1184, 1185 [2011]). Nonetheless, the court's questioning of defendant during the pleaestablished that, despite his use of narcotics prior to the commission of the crime, he had formedthe requisite intent to commit the crime (see People v Morgan, 84 AD3d at 1594).
Lastly, defendant's claim that he received ineffective assistance based upon the failure ofcounsel to advise him of a possible intoxication defense involves matters outside the record and,therefore, must be raised within the context of a CPL article 440 motion (see People v McCray, 96 AD3d1160, 1161 [2012]; People vUnderdue, 89 AD3d 1132, 1134 [2011], lv denied 19 NY3d 969 [2012]).
Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We also note that during hisstatement to police and his preplea investigation interview, defendant admitted his participationin the crime and the intent with which it was carried out and related specific details regarding itscommission.