| People v Diaz-Hernandez |
| 2018 NY Slip Op 08202 [166 AD3d 1389] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Jose Diaz-Hernandez,Appellant. |
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel),for respondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County(Murphy III, J.), rendered September 9, 2015, convicting defendant upon his plea ofguilty of the crime of attempted arson in the second degree.
Defendant pleaded guilty to attempted arson in the second degree in full satisfactionof a five-count indictment and with a recommendation by the People as to the sentence.Defendant also waived the right to appeal orally and in writing. County Court thereaftersentenced defendant to seven years in prison, to be followed by five years of postreleasesupervision. Defendant now appeals.
Defendant's sole contention on appeal is that his guilty plea was not knowing,intelligent and voluntary because County Court did not make an inquiry into a possibleintoxication defense even though it was aware, prior to the plea allocution, that defendantclaimed that he was intoxicated at the time of the crime's commission. We note that therecord does not disclose a postallocution motion by defendant to withdraw his guiltyplea, which would preserve the issue for our review. Nevertheless, we find that, underthe circumstances presented, this was one of those rare cases where "the court's attentionshould have been instantly drawn to the problem, and the salutary purpose of thepreservation rule [was] arguably not jeopardized" (People v Lopez, 71 NY2d662, 666 [1988]; but see People v Negron, 222 AD2d 327, 327 [1995], lvdenied 88 NY2d 882 [1996]). As to the merits, defendant's claim is unavailing.During the allocution, defendant admitted that he attempted to set an apartment door onfire knowing that a person was inside the apartment. Defendant also did not indicate thathe was unable to recall the details of the incident due to being under the influence ofalcohol. In view of the foregoing, we discern no basis to disturb the plea (see People v Doane, 145 AD3d1088, 1089 [2016], lv denied 29 NY3d 997 [2017]).
Garry, P.J., McCarthy, Lynch and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.