| People v Strack |
| 2019 NY Slip Op 07960 [177 AD3d 1036] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Renee Strack, Appellant. |
Matthew A. Toporowski, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Clinton County (Favreau,J.), rendered October 12, 2017, convicting defendant upon her plea of guilty of the crimeof criminal contempt in the first degree.
Defendant was indicted and charged with one count of criminal contempt in the firstdegree. Shortly before her scheduled trial, defendant agreed to plead guilty to the entireindictment with the understanding that County Court was not making a sentencingcommitment. Following a detailed plea colloquy, defendant pleaded guilty to the chargedcrime and the matter was adjourned. When the parties returned to County Court forsentencing, the People requested that the court impose the five years of probationrecommended by the Probation Department; defendant argued for a conditionaldischarge, stating that she "really [did not] want probation." County Court thereaftersentenced defendant to the recommended period of probation, whereupon defendantclaimed that she had been "tricked" and indicated that she "would rather be dead than tobe on probation." Defendant appeals, arguing that County Court's failure to apprise herof the possibility that she could be sentenced to a period of probation rendered her pleainvoluntary.
We affirm. Although not raised by the People, we note that defendant's challenge tothe voluntariness of her plea is unpreserved for our review absent record evidence of anappropriate postallocution motion (see People v Hatch, 165 AD3d 1321, 1321-1322 [2018],lv denied 32 NY3d 1125 [2018]; People v White, 157 AD3d 1128, 1129 [2018], lvdenied 31 NY3d 1018 [2018]). As defendant did not make any statements during theplea colloquy—or at sentencing—that negated an element of the chargedcrime, were inconsistent with her guilt or otherwise called into question the voluntarinessof her plea, the narrow exception to the preservation requirement was not triggered (see People v Favreau, 174AD3d 1226, 1228 [2019]; People v Putman, 169 AD3d 1114, 1115 [2019]). Were weto reach this issue, we would find it to be lacking in merit. Defendant wasapprised—prior to pleading guilty—of her maximum sentencing exposure(see People v Monk, 21NY3d 27, 32 [2013]). She was aware from the start of the sentencing proceedingthat the Probation Department had recommended—and the People wereseeking—a sentence of five years of probation. Her counsel argued strongly foranother disposition. Her present assertion that "she was not fully aware that such aconsequence could follow her plea of guilty" is belied by the record.
Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.