| People v Rich |
| 2016 NY Slip Op 04747 [140 AD3d 1407] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vOmar Rich, Appellant. |
Salvatore Adamo, Albany, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered July 30, 2014, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a controlled substance in the third degree and criminal possessionof a controlled substance in the seventh degree.
Defendant pleaded guilty as charged to criminal possession of a controlled substancein the third degree and criminal possession of a controlled substance in the seventhdegree. County Court thereafter sentenced him to eight years in prison, to be followed by1
Initially, defendant's contention that his plea was not knowing, voluntary andintelligent and that he was denied the effective assistance of counsel were not preservedfor our review by an appropriate postallocution motion (see People v Trombley, 115AD3d 1114, 1114 [2014], lv denied 23 NY3d 1068 [2014]). As to the plea,we note that the narrow exception to the preservation requirement was triggered bydefendant's initial denial during the plea colloquy that he had the intent to sell thenarcotics, thus negating an element of criminal possession of a controlled substance inthe third degree (see Penal Law § 220.16 [1]), and triggering a dutyon the part of County Court to conduct further inquiry (see People v Lopez, 71NY2d 662, 666 [1988]; Peoplev Peterson, 124 AD3d 993, 994 [2015]; People v Morehouse, 109 AD3d 1022, 1022 [2013]).However, the record reveals that the court did then conduct sufficient further inquiry ofdefendant to confirm that he understood the nature of the charge and ensure the [*2]validity of the plea, and defendant thereafter admitted tohaving the requisite intent to sell. "[A]s defendant failed to express any dissatisfactionwith the court's remedial action in this regard, defendant has waived any furtherchallenge to his allocution" (People v English, 100 AD3d 1147, 1148 [2012]; see People v Karolys, 85 AD3d1213 [2011], lv denied 17 NY3d 818 [2011]). Accordingly, we find that theplea was knowing, voluntary and intelligent (see People v Lopez, 71 NY2d at667-668; People v Howard,119 AD3d 1090, 1090 [2014], lv denied 24 NY3d 961 [2014]).
Finally, as to defendant's claim that the sentence is harsh and excessive, the recordreveals no abuse of discretion or extraordinary circumstances warranting a reduction ofthe sentence (see People vHarold, 123 AD3d 1237, 1238 [2014]; People v Terry, 122 AD3d 955, 956 [2014]).
Peters, P.J., Lahtinen, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.