| People v Willingham |
| 2020 NY Slip Op 02295 [182 AD3d 803] |
| April 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Willingham, Appellant. |
Kathy Manley, Selkirk, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Carter,J.), rendered February 8, 2018, convicting defendant upon his plea of guilty of the crimeof attempted criminal possession of a weapon in the second degree.
As part of a global disposition of two indictments and another pending charge,defendant pleaded guilty to attempted criminal possession of a weapon in the seconddegree. In accordance with the terms of the plea agreement, defendant was sentenced, asa second felony offender, to a prison term of three years followed by five years ofpostrelease supervision. He appeals.
Initially, defendant's challenge to the validity of his plea is not preserved for ourreview absent evidence of an appropriate postallocution motion (see People v Strack, 177 AD3d1036, 1037 [2019]; Peoplev Warren, 176 AD3d 1504, 1505 [2019]). Contrary to his assertion, he did notmake any statements during the plea colloquy that negated an element of the chargedcrime (see Penal Law §§ 110.00, 265.03 [3]). Although it istrue that, at the time of the plea, defendant stated that he was unaware that the subjectweapon was located in the glove compartment of the vehicle in which he was apassenger, he went on to acknowledge that he was a passenger in that vehicle and toexpressly admit guilt under a theory of constructive possession (see Penal Law§ 10.00 [8]; Peoplev Thomas, 165 AD3d 1636, 1636 [2018], lv denied 32 NY3d 1129[2018], cert denied 589 US &mdash, 140 S Ct 257 [2019]; People v Boyd, 153 AD3d1608, 1608 [2017], lv denied 30 NY3d 1103 [2018]; People v Worthington, 150AD3d 1399, 1400-1401 [2017], lv denied 29 NY3d 1095 [2017]). Notably,defendant's guilty plea required neither a recitation of every element of the crime nor afactual explanation for each element (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Hollenbeck, 152AD3d 974, 975 [2017], lv denied 30 NY3d 1061 [2017]). Moreover, giventhe applicability of the presumption found in Penal Law § 265.15 (3), theallocution cannot be said to cast significant doubt upon defendant's guilt (see People v Saunders, 2 AD3d905, 905 [2003], lv denied 1 NY3d 634 [2004]; cf. People v Medina-Feliz, 151AD3d 603, 603 [2017]; People v Clavie, 28 AD3d 872, 873 [2006]). Thus, thenarrow exception to the preservation requirement was not triggered and no furtherinquiry by County Court was required, as defendant suggests (see People vLopez, 71 NY2d 662, 666 [1988]).
Egan Jr., J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.