| People v Horton |
| 2016 NY Slip Op 05185 [140 AD3d 1525] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobert A. Horton, Appellant. |
Norbert A. Higgins, Binghamton, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Sophie M. Marmor of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered February 3, 2014, convicting defendant upon his plea of guilty ofthe crime of grand larceny in the third degree.
Defendant pleaded guilty to a single-count indictment charging him with grandlarceny in the third degree, a class D felony (see Penal Law§ 155.35). In accordance with the terms of the plea agreement, he wassentenced as a second felony offender to 2 to 4 years in prison. He now appeals.
Defendant's challenge to the voluntariness of his guilty plea has not been preservedfor our review as the record does not indicate that he made an appropriate postallocutionmotion to withdraw his plea (seePeople v Buck, 136 AD3d 1117, 1118 [2016]; People v Garry, 133 AD3d1039, 1039 [2015]). Moreover, a review of the plea colloquy fails to disclose thatdefendant made statements that negated his guilt so as to trigger the exception to thepreservation requirement (seePeople v Sawyer, 135 AD3d 1164, 1165 [2016], lv denied 27 NY3d1006 [2016]; People v Garry, 133 AD3d at 1040). Defendant contends in his prose brief that his attorney was ineffective because he failed to advise him of a potentialaffirmative defense and that this omission influenced his decision to plead guilty. To theextent that this claim implicates the voluntariness of defendant's guilty plea, it is also notpreserved for our review due to the absence of an appropriate postallocution motion (see People v Islam, 134 AD3d1348, 1349 [2015]; Peoplev Griffin, 134 AD3d 1228, 1230 [*2][2015]).Furthermore, we reject defendant's challenge to the severity of his sentence as hereceived the minimum legally permissible sentence for a second felony offenderconvicted of a class D felony (see Penal Law § 70.06 [3] [d]; [4][b]; People v Iadicicco, 100AD3d 1147, 1147 [2012]; People v Vasquez, 71 AD3d 1179, 1181 [2010], lvdenied 14 NY3d 894 [2010]).
Garry, Rose, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.