| People v Herrera |
| 2017 NY Slip Op 04232 [150 AD3d 625] |
| May 30, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jose Herrera, Respondent. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Ramandeep Singh of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered February 28, 2014,convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing himto a term of two years, unanimously affirmed.
Because defendant had an opportunity to move to withdraw his plea, but did not do so, hischallenge to the voluntariness of the plea is unpreserved (see People v Conceicao, 26 NY3d 375, 381 [2015]), and we declineto review it in the interest of justice. The narrow exception to the preservation rule (seePeople v Lopez, 71 NY2d 662, 666 [1988]) does not apply, because "[d]efendant saidnothing during the plea colloquy or the sentencing proceeding that negated an element of thecrime or raised the possibility of a justification [or intoxication] defense" (People v Pastor, 28 NY3d 1089,1090-1091 [2016]). As an alternative holding, we find that the sentencing court had no obligationto conduct a sua sponte inquiry into postplea statements by defendant that were reflected in thepresentence report (see e.g. People v Bryan, 129 AD3d 524 [1st Dept 2015], lv denied26 NY3d 965 [2015]). In any event, there is no indication in the postplea statements, orelsewhere in the record, to suggest that defendant had any viable defenses.Concur—Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.