| People v Osman |
| 2017 NY Slip Op 04559 [151 AD3d 494] |
| June 8, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Osman Osman, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered November 30,2010, as amended December 14, 2010, convicting defendant, upon his plea of guilty, ofattempted rape in the first degree, and sentencing him to a term of 3
Since, to the extent defendant's comments at sentencing could be construed as a pleawithdrawal motion, that motion did not raise any of the issues raised on appeal, defendant'schallenges to the voluntariness of his plea do not fall within the narrow exception to thepreservation requirement (see People vConceicao, 26 NY3d 375, 381-382 [2015]; People v Peque, 22 NY3d 168, 183 [2013], cert denied 574US &mdash, 135 S Ct 90 [2014]), and we decline to review these unpreserved claims in theinterest of justice. As an alternative holding, we reject them on the merits.
Nothing in the plea allocution record casts doubt on defendant's understanding of the rightshe was giving up by pleading guilty. Although defendant had a history of mental illness, hiscompetency had been established through proceedings under CPL article 730, and he coherentlyanswered all the court's questions about the rights he was waiving.
The court was not required to inquire into the existence of a possible psychiatric orrenunciation defense, because "[d]efendant said nothing during the plea colloquy or thesentencing proceeding that negated an element of the crime or raised the possibility of a[psychiatric or renunciation] defense" (People v Pastor, 28 NY3d 1089, 1090-1091 [2016]). Unlike thesituation in People v Mox (20 NY3d936 [2012]), there was nothing in the actual plea allocution that triggered a duty to inquireinto an potential psychiatric defense. Defendant's cryptic, nonresponsive use of the phrase "stateof mind," immediately followed by an unequivocal declaration that he was "guilty," did not raisea psychiatric defense, and defendant's current assertion that he had a viable renunciation defenseis based entirely on information extrinsic to the plea and sentence proceedings.
Defendant's unpreserved Peque claim does not warrant any remedy in the interest ofjustice (see e.g. People v Diakite,135 AD3d 533 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]).
Finally, neither defendant's vague expression of dissatisfaction with his attorney during theplea colloquy, which was not accompanied by an explicit request for new counsel, nor hiscomplaint about counsel at sentencing, which was plainly the product of a misunderstanding[*2]about credit for time served, was the type of seriouscomplaint that would trigger the court's obligation to make a minimal inquiry (see People v Porto, 16 NY3d 93,100-101 [2010]). Concur—Friedman, J.P., Gische, Kapnick, Kahn and Gesmer, JJ.