| People v Rivers |
| 2016 NY Slip Op 08739 [145 AD3d 1591] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGene D. Rivers, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (Nicole L. Kyle of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered September 26, 2014. The judgment convicted defendant, upon his plea ofguilty, of attempted aggravated criminal contempt, unlawfully fleeing a police officer ina motor vehicle in the third degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of attempted aggravated criminal contempt (Penal Law§§ 110.00, 215.52 [1]), unlawful fleeing a police officer in a motorvehicle in the third degree (§ 270.25), and resisting arrest(§ 205.30). We note at the outset that, as conceded by the People, theuniform sentence and commitment form incorrectly reflects that a post-incarcerationperiod of conditional discharge was imposed, and it therefore must be amended to correctthat clerical error (see generallyPeople v Pitcher, 126 AD3d 1471, 1473-1474 [2015], lv denied 25NY3d 1169 [2015]).
Defendant failed to preserve for our review his contentions that his conventional pleaof guilty to a lesser charge under the first count of the indictment and his Alfordpleas to crimes charged in the sixth and seventh counts of the indictment were notknowingly and voluntarily entered, inasmuch as defendant did not move to withdraw hisguilty plea or to vacate the judgment of conviction (see generally People v Conceicao, 26 NY3d 375, 381[2015]; People v Jones, 114AD3d 1239, 1242 [2014], lv denied 23 NY3d 1038 [2014], 25 NY3d 1166[2015]). This case does not fall within the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]; Jones, 114AD3d at 1242).
In any event, defendant's challenges to County Court's acceptance of his pleas arewithout merit. With respect to defendant's conviction under the first count of theindictment, we conclude that the record affirmatively demonstrates that defendantunderstood the nature and consequences of his plea (see Conceicao, 26 NY3d at382-384). We further note that "no factual colloquy was required inasmuch as defendantpleaded guilty to a crime lesser than that charged" (People v Richards, 93 AD3d 1240, 1240 [2012], lvdenied 20 NY3d 1014 [2013]; see People v Harris, 125 AD3d 1506, 1507 [2015], lvdenied 26 NY3d 929 [2015]).
Similarly, "the record establishes that defendant's Alford plea was 'theproduct of a voluntary and rational choice, and the record before the court containsstrong evidence of actual guilt' " (People v Smith, 26 AD3d 746, 747 [2006], lv denied7 NY3d 763 [2006]). Beyond that, the record "shows that defendant was advised ofhis rights and that his Alford plea . . . was knowingly, intelligentlyand voluntarily entered with a full understanding of its consequences" (People vAlfieri, 201 AD2d 935, 935 [1994], lv denied 83 NY2d 908 [1994]; seePeople v Clacks, 298 AD2d 846, 847 [2002], lv denied 99 NY2d 534[2002]). We note that the court specifically advised defendant of the existence of apossible defense of intoxication and elicited defendant's knowing waiver of that defense(see People v Petix, 234 AD2d 994, 995 [1996], lv denied 89 NY2d 1098[1997]). Present—Smith, J.P., Lindley, DeJoseph, NeMoyer and Troutman,JJ.