| People v Small |
| 2018 NY Slip Op 07796 [166 AD3d 1237] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Naquan D. Small, Appellant. |
Del Atwell, East Hampton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri ofcounsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Dooley,J.), rendered February 9, 2017, convicting defendant upon his plea of guilty of the crimeof perjury in the first degree.
In August 2016, defendant was indicted and charged with one count of perjury in thefirst degree after he provided false testimony during his parole revocation hearing.Following his conviction of certain unrelated drug charges, which were the subject of aseparate indictment, defendant agreed to plead guilty to perjury in the first degreewithout a sentencing commitment from County Court, except insofar as the courtindicated that it would be inclined to impose concurrent terms of imprisonment.Defendant thereafter pleaded guilty to perjury in the first degree, and County Courtsentenced defendant as a second felony offender to a prison term of 3 to 6years—said sentence to run concurrently with the prison term imposed upon thedrug convictions. Defendant now appeals.
Defendant's challenge to the voluntariness and/or factual sufficiency of his guiltyplea is unpreserved for our review absent evidence of an appropriate postallocutionmotion (see People vMuller, 159 AD3d 1232, 1232 [2018]; People v Bailey, 158 AD3d 948, 948 [2018]; People v Hankerson, 147AD3d 1153, 1153 [2017], lv denied 29 NY3d 998 [2017]). To the extentthat defendant contends that County Court failed to apprise him of his Boykinrights and that such claim is not subject to the preservation rule, he is mistaken. TheCourt of Appeals has made clear "that the preservation requirement still applies toBoykin claims . . . Thus, a challenge to the validity of a plea,whether based on the court's failure to mention the Boykin rights or some otheralleged defect in the allocution, must be preserved depending on the facts of [each] case"(People v Conceicao, 26NY3d 375, 382 [2015]; seePeople v Sommers, 140 AD3d 1537, 1538 [2016], lv denied 28 NY3d974 [2016]).
[*2] Here, approximately threeweeks elapsed between defendant's plea and sentencing. As defendant had anopportunity to move to withdraw his plea and failed to do so, his challenge to theadequacy of County Court's allocution is not preserved (see e.g. People v Jackson, 159AD3d 1276, 1276 [2018], lv denied 31 NY3d 1149 [2018]; People v Evans, 159 AD3d1226, 1227 [2018], lv denied 31 NY3d 1081 [2018]). "Additionally,defendant did not make any statements during his allocution that cast doubt upon hisguilt or negated an element of the charged crime, and nothing on the face of the colloquycalls into question either the voluntariness of defendant's plea or his capacity to enter intoit" (People v Lamb, 162AD3d 1395, 1396 [2018] [citations omitted]). Hence, the narrow exception to thepreservation requirement was not triggered (see id. at 1396). In any event, therecord reflects that County Court indeed advised defendant of his Boykin rights,i.e., the privilege against self-incrimination, the right to a jury trial and the right toconfront witnesses (see People vTyrell, 22 NY3d 359, 365 [2013]), and that defendant, in turn, knowingly andvoluntarily waived those rights (see People v Toledo, 144 AD3d 1332, 1333 [2016], lvdenied 29 NY3d 1001 [2017]).
Finally, defendant's challenge to the procedures employed in adjudicating him asecond felony offender is unpreserved as he failed to raise any objection in this regard atsentencing (see People vWilliams, 155 AD3d 1253, 1255 [2017], lv denied 31 NY3d 1089[2018]). In any event, defendant was provided with a predicate felony statement at thetime of sentencing, whereupon he admitted the prior conviction and failed to contest thelegality thereof (see id. at 1255). Accordingly, the judgment of conviction isaffirmed.
Lynch, J.P., Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.