| People v King |
| 2018 NY Slip Op 07795 [166 AD3d 1236] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Roy King, Appellant. |
Donnial K. Hinds, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel),for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered November 4, 2016, convicting defendant upon his plea ofguilty of the crime of attempted promoting prison contraband in the first degree.
During a prison yard fight, defendant, an inmate, was observed throwing a razor-likeweapon, and he was charged by indictment with promoting prison contraband in the firstdegree. Pursuant to a plea agreement, County Court granted the People's motion toamend the indictment to charge attempted promoting prison contraband in the firstdegree, and defendant pleaded guilty to that reduced charge. Consistent with theagreement, defendant was sentenced, as an admitted second felony offender, to a prisonterm of 1
We affirm. Defendant challenges the factual sufficiency of his plea allocution,arguing that it failed to establish that the contraband he possessed was dangerous. Thisclaim is unpreserved, as the record does not reflect that he made an appropriatepostallocution motion (see CPL 220.60 [3]; People v Carston, 163 AD3d 1166, 1167 [2018], lvdenied 32 NY3d 1002 [2018]; People v Johnson, 153 AD3d 1047, 1048 [2017], lvdenied 30 NY3d 1061 [2017]). Further, defendant did not make any statementsduring the allocution that cast doubt on his guilt or the voluntariness of his plea so as totrigger the narrow exception to the preservation rule (see People v Williams, 27 NY3d 212, 219-220 [2016];People v Lopez, 71 NY2d 662, 666 [1988]). Moreover, "an allocution based on anegotiated plea need not elicit from a defendant specific admissions as to each element ofthe charged crime" (People vGoldstein, 12 NY3d 295, 300-301 [2009]; accord People v Woods, 147 AD3d 1156, 1157 [2017],lv denied 29 NY3d 1089 [2017]), nor was County Court required to "engage in afactual recitation," as defendant's affirmative responses to the court's questions weresufficient (People v Johnson, 153 AD3d at 1048).
[*2] To the extent that defendant challenges his guilty pleaas not knowing, voluntary and intelligent, this claim is likewise unpreserved and, werethe issue properly before us, we would find that the plea was "a knowing, voluntary andintelligent choice among alternative courses of action" (People v Conceicao, 26 NY3d375, 382 [2015]; see People v Johnson, 153 AD3d at 1048; People vWoods, 147 AD3d at 1156-1157). Finally, contrary to defendant's argument, his"eligibility for an enhanced sentence upon a hypothetical future conviction is merely a'collateral consequence' of a plea of guilty that [he] need not be advised of in order forthe guilty plea to be deemed fully informed" (People v Kirton, 36 AD3d 1011, 1014-1015 [2007][internal quotation marks and citation omitted], lv denied 8 NY3d 947 [2007]; accord People v Richardson,132 AD3d 1022, 1023 [2015]).
Garry, P.J., Egan Jr., Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.