| People v Johnson |
| 2017 NY Slip Op 06110 [153 AD3d 1047] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v TrevisJohnson, Appellant. |
Michael P. Graven, Owego, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Broome County (Martin, J.),rendered December 16, 2014, convicting defendant upon his plea of guilty of the crime ofmanslaughter in the first degree.
Defendant was charged in a four-count indictment with murder in the first degree and othercrimes, stemming from the shooting death of Sergio Beldo in October 2013. In satisfaction ofthose charges, defendant accepted a plea agreement pursuant to which he pleaded guilty to thereduced charge of manslaughter in the first degree. County Court thereafter imposed a prisonterm of 19 years with five years of postrelease supervision. Defendant now appeals.
Defendant challenges the factual sufficiency of the plea allocution for the first time onappeal. Having failed to make an appropriate postallocution motion to withdraw his guilty plea,defendant deprived County Court of the opportunity to address any claimed deficiency and takeany needed corrective action, and did not preserve the issue for this Court's review (seeCPL 220.60 [3]; People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Ocasio-Rosario, 120 AD3d1463, 1464 [2014], lvs denied 25 NY3d 1168 [2015], 26 NY3d 1148 [2016]).Contrary to defendant's claim, he did not make any statements during the plea allocution orthereafter that cast doubt on his guilt or the voluntariness of his plea and, therefore, the narrowexception to the preservation requirement is inapplicable (see People v Williams, 27 NY3d 212, 219-220 [2016]; People vLopez, 71 NY2d at 666; People vAustin, 141 AD3d 956, 957 [2016]). Were the issue properly before us, we would findthat the plea was "a knowing, voluntary and intelligent choice among alternative [*2]courses of action" (People v Conceicao, 26 NY3d 375, 382 [2015]; see People v Farnsworth, 140 AD3d1538, 1540 [2016]). Defendant pleaded guilty to a lesser crime and was not required topersonally recite its elements or engage in a factual recitation (see People v Goldstein, 12 NY3d295, 300-301 [2009]), and it was sufficient that he provided affirmative responses to thecourt's questions (see People vToledo, 144 AD3d 1332, 1333 [2016], lv denied 29 NY3d 1001 [2017]; People v Larock, 139 AD3d1241,1242 [2016], lv denied 28 NY3d 932 [2016]). During the plea allocution,defendant admitted that following an altercation with the victim, he returned with a shotgun andshot the victim with the intent to cause serious physical injury, causing the victim's death(see Penal Law § 125.20 [1]). Defendant's refusal to implicate the otherparticipant, which was not required by the agreement, did not negate an element of thecrime.
Defendant also argues that the sentence was harsh and excessive. We are not persuaded.Defendant's claim that he had mental health problems is unsupported in the record and, given hislack of remorse, criminal history and the senseless brutality of this crime, we discern no abuse ofdiscretion or extraordinary circumstances warranting a reduction of the sentence in the interest ofjustice (see CPL 470.15 [3] [c]; [6] [b]; People v Buck, 136 AD3d 1117, 1119 [2016]).
Garry, Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.