| People v Fowler |
| 2016 NY Slip Op 01082 [136 AD3d 1395] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSteven L. Fowler, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered November 19, 2013. The judgment convicted defendant, upon his plea ofguilty, of attempted assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10[1]), defendant contends that County Court erred in refusing to grant his pro se motion towithdraw his plea, which defendant asserts was involuntary because his attorney failed toadvise him of the possible defense of intoxication. We reject that contention. Defendantwas represented by counsel and was not entitled to hybrid representation (see Peoplev Rodriguez, 95 NY2d 497, 501-502 [2000]; People v Alsaifullah, 96 AD3d 1103, 1103 [2012], lvdenied 19 NY3d 944 [2012]), and we therefore conclude that the court did not abuseits discretion in refusing to entertain the pro se motion. We note in any event thatdefendant admitted during the plea colloquy that he intended to cause serious physicalinjury to the victim when he stabbed him with a knife, and, thus, his claim that he wastoo intoxicated to form the requisite intent is belied by the plea transcript (seegenerally People v Santana, 110 AD2d 789, 789 [1985], lv denied 67 NY2d656 [1986]).
Defendant failed to preserve for our review his contention that the court erred insentencing him as a second violent felony offender inasmuch as he failed to controvertthe allegations in the predicate felony statement (see People v Smith, 73 NY2d961, 962-963 [1989]; People vLawrence, 23 AD3d 1039, 1039-1040 [2005], lv denied 6 NY3d 835[2006]), and the narrow exception to the preservation rule does not apply (see People v Nieves, 2 NY3d310, 315-316 [2004]; cf. People v Samms, 95 NY2d 52, 55-57 [2000]). Wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [3] [c]; People v Sullivan, 4 AD3d 223, 224 [2004], lv denied2 NY3d 765 [2004]). Present—Whalen, P.J., Peradotto, Carni, Lindley andDeJoseph, JJ.