| People v Smith |
| 2015 NY Slip Op 06381 [130 AD3d 1375] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDevin A. Smith, Appellant. |
John P.M. Wappett, Public Defender, Lake George, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered September 25, 2013, convicting defendant upon his plea of guilty of thecrime of assault in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with assault in the second degree, stemming from analtercation with a peace officer. He pleaded guilty as charged and waived his right toappeal. As part of the plea agreement, defendant was placed on interim probation for aperiod of one year. County Court advised defendant that, if he successfully compliedwith the terms of interim probation, he would be allowed to withdraw his plea and pleadguilty to attempted assault in the second degree and would be sentenced to five years ofprobation, but, if he failed to comply, he faced a prison sentence of up to seven years.Defendant failed to comply with the terms of interim probation and County Courtsentenced him to three years in prison, to be followed by three years of postreleasesupervision. Defendant now appeals.
Defendant's sole contention on appeal is that his recitation of the facts during theplea allocution did not establish the element of physical injury required by the crime ofassault in the second degree (see Penal Law § 120.05 [3]). Such aclaim is precluded by his valid appeal waiver and is also unpreserved for our review dueto his apparent failure to make an appropriate postallocution motion (see People v Terrell, 123 AD3d1341, 1341-1342 [2014], lv denied 25 NY3d 953 [2015]; People v Durham, 110 AD3d1145, 1145 [2013]). Moreover, contrary to [*2]defendant's contention, the narrow exception to thepreservation requirement is only triggered "where a defendant has made statementsinconsistent with his or her guilt which negate an essential element of the crime to whichthe defendant pleaded [and] not where the sufficiency of the articulation of the element ischallenged" (People vSeeber, 12 AD3d 950, 950-951 [2004], lv denied 4 NY3d 803 [2005][internal quotation marks and citations omitted]; see People v Martinez-Velazquez, 89 AD3d 1318, 1319[2011]). Although inartful, the plea colloquy here does not fall within the ambits of suchexception.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.