| People v Vogt |
| 2017 NY Slip Op 03682 [150 AD3d 1704] |
| May 5, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Gregory J.Vogt, Appellant. |
Law Offices of Matthew J. Rich, P.C., Rochester (Matthew J. Rich of counsel), fordefendant-appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered June 8,2015. The judgment convicted defendant, upon his plea of guilty, of attempted assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]).Defendant's contention that his plea was not knowingly, voluntarily and intelligently entered isnot preserved for our review because defendant "did not move to withdraw the plea or to vacatethe judgment of conviction" (People vLaney, 117 AD3d 1481, 1482 [2014]), but we agree with defendant that his recitation ofthe facts underlying the charge cast significant doubt upon his guilt insofar as it negated theelement of intent, and thus this case "falls within the narrow exception to the preservationrequirement" (People v Bertollini [appeal No. 2], 141 AD3d 1163, 1164 [2016]).Nevertheless, we affirm, inasmuch as County Court conducted the requisite inquiry to ensure thatdefendant's plea was knowing and voluntary (see People v Lopez, 71 NY2d 662, 666[1988]). Here, while defendant's initial statements regarding his intent to injure the victim" 'trigger[ed] the trial court's duty to conduct a further inquiry to ensure that defendant'splea was knowingly and voluntarily made' " (People v Bonacci, 119 AD3d 1348, 1349 [2014], lv denied24 NY3d 1042 [2014], quoting People v McNair, 13 NY3d 821, 822-823 [2009]), we conclude thatthe court "properly conducted such an inquiry and that 'defendant's responses to the court'ssubsequent questions removed [any] doubt about [his] guilt' " (id.; see Peoplev Ocasio, 265 AD2d 675, 677-678 [1999]). Contrary to defendant's further contention, thecourt had no duty to engage in an additional inquiry regarding a possible justification defense." '[N]othing [defendant] said [during the plea colloquy] raised the possibility of a viablejustification defense' " (People vManor, 121 AD3d 1581, 1582 [2014], affd 27 NY3d 1012 [2016]; see People v Wilson, 107 AD3d532, 532 [2013], lv denied 22 NY3d 1160 [2014], denied reconsideration 23NY3d 1069 [2014]; cf. People vPonder, 34 AD3d 1314, 1315 [2006]), and the court "had no duty to conduct an inquiryconcerning the potential defense of [justification] based upon comments made by defendantduring the . . . sentencing proceeding" (People v Phillips, 30 AD3d 911, 911 [2006], lv denied 7NY3d 869 [2006]). Present—Smith, J.P., Peradotto, DeJoseph, NeMoyer and Curran,JJ.