| People v DeCenzo |
| 2015 NY Slip Op 07869 [132 AD3d 1160] |
| October 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel DeCenzo, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedSeptember 9, 2014 in Albany County, convicting defendant upon his plea of guilty of thecrime of robbery in the second degree.
Pursuant to a negotiated agreement, defendant waived his right to appeal and pleadedguilty to a single-count indictment charging him with robbery in the second degree. Thecharge stemmed from an incident wherein defendant forcibly stole a purse from an89-year-old woman, causing her to fall to the ground and sustain various injuries.Defendant thereafter was sentenced—consistent with the terms of the pleaagreement—to seven years in prison followed by three years of postreleasesupervision. Defendant now appeals.
We affirm. Although defendant's challenge to the voluntariness of his plea surviveshis uncontested waiver of the right to appeal, this claim is unpreserved for our review inthe absence of an appropriate postallocution motion (see People v Hudson, 130 AD3d 1320, 1320 [2015]; People v Guyette, 121 AD3d1430, 1431 [2014]). Moreover, the narrow exception to the preservation requirementwas not triggered here, as defendant did not make any statements during his pleaallocution that were inconsistent with his guilt or otherwise called into question thevoluntariness of his plea (seePeople v Hare, 110 AD3d 1117, 1117 [2013]; see also People v Carr, 127AD3d 1503, 1504 [2015]). Although defendant indeed indicated that he had takenXanax prior to committing the underlying crime, defendant did not contend that he wasunable to recall the subject events (compare People v Jimenez, 110 AD3d 740, 741 [2013];People v Osgood, 254 AD2d 571, 572 [1998]). More to the point, County Courtspecifically asked [*2]defendant if he was aware of "theconcept of intoxication," which the court then accurately explained could be consideredby a jury with regard to the required element of intent (see generally People v Beaty,22 NY3d 918, 921 [2013]), and further inquired as to whether defendant haddiscussed this with his attorney. In response, defendant acknowledged that he haddiscussed a potential intoxication "defense" with counsel and indicated that he had nofurther questions for either County Court or defense counsel in this regard. Under thesecircumstances, we are satisfied that County Court adequately explored the intoxicationissue with defendant, and that defendant, in turn, validly waived his right to pursue thispotential "defense" at trial (seePeople v McNulty, 70 AD3d 1127, 1128 [2010]). Defendant's remainingclaim—that the sentence imposed is harsh and excessive—is foreclosed byhis waiver of the right to appeal (see People v Bryant, 128 AD3d 1223, 1225 [2015], lvdenied 26 NY3d 926 [2015]).
Rose, Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.