| People v Bailey |
| 2018 NY Slip Op 01097 [158 AD3d 948] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Larry A.Bailey, Appellant. |
Michael P. Graven, Owego, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered February 11, 2015, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with criminal possession of a weapon in the third degree. The chargestemmed from an incident wherein defendant was "jumped" by a group of individuals who stolehis bicycle and backpack. Defendant admittedly refused to cooperate with law enforcementofficials who responded to the scene and, after initially going home, defendant returned to thescene to attempt to retrieve some of his property; upon doing so, defendant stabbed one of hisassailants with a knife. After being apprised of the rights that he would be forfeiting by acceptingthe People's plea offer, defendant pleaded guilty to criminal possession of a weapon in the thirddegree—in full satisfaction of the superior court information, two pending misdemeanorcharges and any other potential charges arising from this incident—in exchange for thecontemplated prison sentence of 3 to 6 years. County Court thereafter sentenced defendant as asecond felony offender to the agreed-upon prison term, prompting this appeal.
We affirm. Defendant's challenges to the factual sufficiency and the voluntariness of hisplea—the latter of which is premised upon County Court's failure to inquire as to apotential intoxication or justification defense—are unpreserved for our review as therecord does not indicate that defendant made an appropriate postallocution motion (seePeople v Leflore, 154 [*2]AD3d 1164, 1165 [2017]; People v Woods, 147 AD3d 1156,1156-1157 [2017], lv denied 29 NY3d 1089 [2017]; People v Hankerson, 147 AD3d 1153, 1153 [2017], lvdenied 29 NY3d 998 [2017]; Peoplev Shipps, 136 AD3d 1113, 1113 [2016]). Contrary to defendant's assertion, he did notmake any statements during the course of the plea colloquy that were inconsistent with his guiltor otherwise called into question the voluntariness of his plea; hence, the narrow exception to thepreservation requirement was not triggered (see People v Fay, 154 AD3d 1178, 1181 [2017]; People v Millard, 147 AD3d 1155,1156 [2017], lv denied 29 NY3d 999 [2017]). Notably, nothing on the face of the pleacolloquy suggested that a viable defense to the charged crime might be implicated (see People v Wright, 154 AD3d1015, 1016 [2017], lv denied 30 NY3d 1065 [2017]; People v Hopper, 153 AD3d 1045,1046-1047 [2017], lv denied 30 NY3d 1061 [2017]). Defendant's claim that he wasintoxicated at the time of the incident and could not recall what had transpired was articulated forthe first time during his presentence interview with the Probation Department, and County Courtwas under no obligation to conduct any further inquiry in response to this belated, postpleaassertion (see People v Hopper, 153 AD3d at 1047; People v Brimmage, 143 AD3d 624, 625 [2016], lv denied28 NY3d 1143 [2017]; People vPastor, 136 AD3d 493, 493 [2016], affd 28 NY3d 1089 [2016]; People v Terrell, 134 AD3d 651,652 [2015], lv denied 27 NY3d 1075 [2016]; People v Bryan, 129 AD3d 524, 524 [2015], lv denied 26NY3d 965 [2015]). In any event, defendant's argument on this point is belied by his detailed pleaallocution, wherein he recited the specific events leading up to and culminating in the underlyingcrime. We find no extraordinary circumstances or abuse of discretion that would warrant amodification of the sentence in the interest of justice (see People v Barnes, 150 AD3d 1338, 1339 [2017]; People v Leone, 105 AD3d 1249,1250 [2013], lv denied 21 NY3d 1017 [2013]).
Lynch, Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment is affirmed.