| People v Cubi |
| 2013 NY Slip Op 01720 [104 AD3d 1225] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vManuel Cubi, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 3, 2009. The judgment convicted defendant, upon his plea of guilty,of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of murder in the second degree (Penal Law § 125.25 [1]). Defendantcontends that the plea colloquy cast significant doubt on the voluntariness of his plea andthat it was factually insufficient because he failed to admit that he intended to kill thevictim and thus that the rare exception to the preservation doctrine applies. We reject thatcontention (see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied86 NY2d 839 [1995]; People v Lopez, 71 NY2d 662, 666 [1988]; see generally People v McNair,13 NY3d 821, 822 [2009]).
By failing to move to withdraw his plea or to vacate the judgment of conviction,defendant failed to preserve for our review his contentions that the plea allocution wasfactually insufficient (see Lopez, 71 NY2d at 665), and that the plea was notknowingly and voluntarily entered (see People v Bloom, 96 AD3d 1406, 1406 [2012], lvdenied 19 NY3d 1024 [2012]). In any event, we conclude that defendant'scontentions are without merit. With respect to the factual sufficiency of the pleaallocution, we note that defendant explained to Supreme Court that he heard an argumentinvolving the victim and defendant's mother and that he therefore retrieved a sawed-offshot gun that was hidden under a dumpster. Defendant approached the scene and heardthe victim curse at his mother. When the victim looked at defendant, defendant shot himin the chest from a distance of 9 to 11 feet. We thus conclude that the plea allocution wasfactually sufficient. Although defendant did not admit that he intended to kill the victim,it is well established that "an allocution based on a negotiated plea need not elicit from adefendant specific admissions as to each element of the charged crime . . . Itis enough that the allocution shows that the defendant understood the charges and madean intelligent decision to enter a plea" (People v Goldstein, 12 NY3d 295, 301 [2009]). We furtherconclude that the plea was knowingly and voluntarily entered inasmuch as the recordestablishes that the 16-year-old defendant understood the consequences of his plea ofguilty and that he was pleading guilty in exchange for a [*2]negotiated sentence that was less than the maximum termof imprisonment (see generally People v Harris, 61 NY2d 9, 19 [1983]). Thesentence is not unduly harsh or severe. Present—Scudder, P.J., Peradotto, Carni,Lindley and Whalen, JJ.