| People v Rathburn |
| 2019 NY Slip Op 09163 [178 AD3d 1421] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v John A. Rathburn, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, PLLC, Syracuse(John A. Cirando of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedApril 5, 2017. The judgment convicted defendant, upon a plea of guilty, of course of sexualconduct against a child in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1] [b]) and endangering the welfare of a child (§ 260.10 [1]). We affirm.
Defendant's challenges to the voluntariness of his plea are unpreserved for appellate reviewbecause he never moved to withdraw his plea or to vacate the judgment of conviction on thatground (see People v Gardner, 101AD3d 1634, 1634 [4th Dept 2012]). Although defendant's initial factual allocution may havenegated an essential element of course of sexual conduct against a child in the first degree, theexception to the preservation rule does not apply because the matter was adjourned, defendantconsulted with his lawyer, the prosecutor conducted the requisite further inquiry, and defendantdid not thereafter raise any further objections (see id. at 1634-1635; People v Jennings, 8 AD3d 1067,1068 [4th Dept 2004], lv denied 3 NY3d 676 [2004]). In any event, it is well establishedthat defendant's "monosyllabic . . . responses to questioning by County Court do notrender his plea unknowing and involuntary" (People v Dunham, 83 AD3d 1423, 1424 [4th Dept 2011], lvdenied 17 NY3d 794 [2011]; seePeople v VanDeViver, 56 AD3d 1118, 1118 [4th Dept 2008], lv denied 11NY3d 931 [2009], denied reconsideration 12 NY3d 788 [2009]). Moreover, defendant'sassertion that his allocution failed to affirmatively establish each element of the crimes "is not arecognized ground for vacating a guilty plea" (People v Gulbin, 165 AD3d 1611, 1612 [4th Dept 2018], lvdenied 32 NY3d 1172 [2019]; seePeople v Goldstein, 12 NY3d 295, 300-301 [2009]). Indeed, "[i]t is well established thata defendant who pleads guilty need not 'acknowledge[ ] committing every element of thepleaded-to offense . . . or provide[ ] a factual exposition for each element of thepleaded-to offense' " (People vMadden, 148 AD3d 1576, 1578 [4th Dept 2017], lv denied 29 NY3d 1034[2017], quoting People v Seeber, 4NY3d 780, 781 [2005]). Finally, the negotiated sentence is not unduly harsh or severe.Present—Whalen, P.J., Centra, Peradotto, NeMoyer and Winslow,JJ.