| People v Bonville |
| 2013 NY Slip Op 01876 [104 AD3d 1024] |
| March 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BruceBonville, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Garry, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered May3, 2010 in Clinton County, convicting defendant upon his plea of guilty of the crime ofassault in the second degree.
The facts of this case are more fully set out in our prior decision in this matter (69AD3d 1223, 1223-1224 [2010]). Defendant was convicted on charges stemming fromincidents involving his children, including one wherein he inadvertently shot his sonduring an altercation (id. at 1223-1224). We reversed and, upon remittal,defendant pleaded guilty to assault in the second degree and waived his right to appeal.Supreme Court sentenced defendant to a prison term of five years, to be followed bythree years of postrelease supervision. Defendant now appeals, and we affirm.
Defendant asserts that the plea colloquy did not establish that he acted recklessly asrequired to establish the crime of second-degree assault (see Penal Law§§ 15.05 [3]; 120.05 [4]). Such an attack upon the factual sufficiency of theplea is precluded by defendant's waiver of the right to appeal both his conviction andsentence which, contrary to his assertion, we find to be valid (see People v Holmes, 75 AD3d834, 834-835 [2010], lv denied 15 NY3d 921 [2010]; People v Swindell, 72 AD3d1340, 1341 [2010], lv denied 15 NY3d 778 [2010]). Moreover, to the extentthat defendant's challenge to his guilty plea can be construed as an attack upon itsvoluntariness, which survives his appeal waiver, the record does not indicate that he[*2]moved to withdraw his plea or vacate the judgmentof conviction, rendering the issue unpreserved for our review (see People v Martinez, 79AD3d 1378, 1378 [2010], lv denied 16 NY3d 798 [2011]; People vHolmes, 75 AD3d at 834-835). Nor are we persuaded that the narrow exception tothe preservation requirement was triggered here. Although defendant was initiallyunwilling to admit that his behavior had been reckless, he ultimately conceded that hisactions in brandishing a loaded pistol during the altercation had been just that (see e.g. People v White, 75AD3d 109, 120 [2010], lv denied 15 NY3d 758 [2010]; People vRodriguez, 144 AD2d 273, 275 [1988], lv denied 73 NY2d 1021 [1989]).The plea allocution as a whole was thus consistent with defendant's guilt, did not callinto question the voluntariness of his plea and demonstrated that he knowingly,intelligently and voluntarily pleaded guilty (see People v Lopez, 71 NY2d 662,666 [1988]; People v Martinez, 79 AD3d at 1378-1379).
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.