| People v Loftus |
| 2020 NY Slip Op 02647 [183 AD3d 631] |
| May 6, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Loftus, Appellant. |
Thomas J. Whalen, Dover Plains, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kristen A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Stephen L. Greller, J.), rendered February 27, 2013, convicting him of rape in the firstdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant entered a plea of guilty to one count of rape in the first degree,admitting that he had sexual intercourse with an unconscious 14-year-old girl. Thedefendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review, since he did not move towithdraw the plea (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Ospina, 175 AD3d513, 514 [2019]). Moreover, contrary to the defendant's contention, the exception tothe preservation requirement does not apply here, since the plea allocution did not castsignificant doubt upon the defendant's guilt, negate an essential element of the crime, orcall into question the voluntariness of the plea (see People v Lopez, 71 NY2d at666; People v Peralta, 171AD3d 948 [2019]). In any event, the defendant's contention is without merit, as therecord as a whole affirmatively demonstrates that the defendant entered his plea of guiltyknowingly, voluntarily, and intelligently (see People v Conceicao, 26 NY3d 375, 383 [2015]).
Contrary to the defendant's contention, his factual recitation during the pleaallocution did not impose upon the County Court a duty to inquire about a possibleintoxication defense (see People v Sierra, 256 AD2d 598, 599 [1998]; Peoplev Suba, 130 AD2d 526, 527 [1987]). Moreover, since the defendant did not move towithdraw his plea prior to sentencing, and there was nothing in his plea allocution thatwould cast doubt on his guilt or otherwise call into question the voluntariness of his plea,the court was under no obligation to conduct a sua sponte inquiry into certain statementsthe defendant made to the probation officer who prepared the presentence report (seePeople v Ospina, 175 AD3d at 514).
The defendant's challenge to the factual sufficiency of his plea allocution also isunpreserved for appellate review (see People v Lopez, 71 NY2d at 665). In anyevent, the facts the defendant admitted during his plea allocution were sufficient toestablish the elements of the crime of rape in the first degree (Penal Law§ 130.35 [2]; see § 130.00 [7]; People v Perkins, 27 AD3d890, 892 [2006]).
The defendant's contention that he received ineffective assistance of counsel is beliedby the record, which reflects that his counsel negotiated a favorable plea agreement thatsubstantially limited the defendant's exposure to imprisonment and that, under the totalityof the circumstances, the defendant received the effective assistance of counsel (seeStrickland v Washington, 466 US 668, 690 [1984]; People v Baldi, 54 NY2d137, 147 [1981]).
Contrary to the defendant's contention, the record demonstrates that the CountyCourt considered the appropriate sentencing factors and sentenced the defendant to aterm of incarceration within the range agreed to by the parties in the plea agreement (see People v De Alvarez, 59AD3d 732, 733 [2009]; see generally People v Farrar, 52 NY2d 302,305-306 [1981]).
The defendant's remaining contentions are without merit. Dillon, J.P., Cohen, Duffyand Connolly, JJ., concur.