| People v Banner |
| 2014 NY Slip Op 07516 [122 AD3d 641] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Damon C. Banner, Appellant. |
Martin Geoffrey Goldberg, Franklin Square, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartzand Ames C. Grawert of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Nassau County(Kase, J.), rendered August 8, 2012, convicting him of attempted murder in the seconddegree under indictment No. 2065/11, and (2) a judgment of the same court renderedSeptember 28, 2012, convicting him of arson in the third degree under indictment No.289/12, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant contends that his plea of guilty to attempted murder in the seconddegree was involuntary because the Supreme Court never elicited an admission as to hisintent. The defendant further contends that this plea, and his plea of guilty to arson in thethird degree, were involuntary because a question was raised as to his mental conditionduring the plea colloquy. However, contrary to the defendant's contention, his challengesto the voluntariness of the pleas are not preserved for appellate review since he nevermade a motion to withdraw his pleas prior to sentencing. Although the defendant made amotion to vacate the judgments pursuant to CPL article 440, the issues raised in thatmotion are not properly before us on these direct appeals from the judgments ofconviction (see People vFinn, 63 AD3d 755 [2009]; People v DaCosta, 217 AD2d 661, 662[1995]). Moreover, contrary to the defendant's contention, the exception to thepreservation rule does not apply here because the defendant's allocutions did not castsignificant doubt upon his guilt, negate an essential element of the crimes, or call intoquestion the voluntariness of the pleas (see People v Lopez, 71 NY2d 662, 666[1988]). In any event, the plea allocution to the charge of attempted murder in the seconddegree was sufficient since "the allocution shows that the defendant understood thecharges and made an intelligent decision to enter a plea" (People v Goldstein, 12 NY3d295, 301 [2009]). The defendant's contention that the voluntariness of his pleas wasimpaired by his mental condition is unsupported by the record (see People vRodriguez, 302 AD2d 317 [2003]). Balkin, J.P., Chambers, Miller and Hinds-Radix,JJ., concur.