| People v Vilbrin |
| 2020 NY Slip Op 02825 [183 AD3d 1012] |
| May 14, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Vilbrin, Appellant. |
Brian M. Quinn, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered September 15, 2017, convicting defendant upon his plea ofguilty of the crime of attempted murder in the second degree.
Based on a March 21, 2017 incident in which defendant stabbed the victim with aknife, defendant pleaded guilty, in full satisfaction of a six-count indictment, toattempted murder in the second degree and waived the right to appeal. In accord with theplea agreement, County Court sentenced defendant to 17 years in prison, to be followedby five years of postrelease supervision. Defendant appeals.
Defendant's challenge to the plea as involuntary and his ineffective assistance ofcounsel claim, to the extent that it implicates the voluntariness of the plea, survive hisunchallenged appeal waiver but are unpreserved for our review as the record does notreflect that defendant made an appropriate postallocution motion (see People v White, 172 AD3d1822, 1823-1824 [2019], lv denied 33 NY3d 1110 [2019]; People v Peryea, 169 AD3d1120, 1120 [2019], lv denied 33 NY3d 980 [2019]). Nor are we persuadedby defendant's contention that his reference at sentencing to the use of Zoloft cast doubtupon his guilt or called into question the voluntariness of his plea so as to trigger thenarrow exception to the preservation requirement (see People v Tyrell, 22 NY3d 359, 363-364 [2013]; compare People v Chin, 160AD3d 1038, 1039 [2018]). During the plea colloquy, defendant advised CountyCourt that he had been treated for depression since February 2017, had been hospitalizedfor a week and was taking a prescribed medication. Defendant then respondedaffirmatively when the court asked whether the medication helped and allowed him tothink clearly. Defendant further confirmed that he was able to ask questions of hisattorney and to understand the responses. When asked whether he had any concerns "inthat regard," counsel responded "none whatsoever." Defendant did not specify that hewas using Zoloft.
At sentencing, defendant initially complained that he was being sentenced "for 17years for an inch and a half hand laceration and a black eye." He asserted that counselwas ineffective, stating, "I've brought up something with Zoloft, and anything I broughtup to him was nothing." Defendant further instructed the court to "[l]ook up Zoloft."According to defendant, these comments raised the potential defense that he acted underthe influence of extreme emotional disturbance (see Penal Law§ 125.25 [1] [a]). To the contrary, defendant's generic reference to Zoloftraises no such issue given his explanation during the plea colloquy that the medication hewas taking for depression did not affect his ability to think clearly. Accordingly, thejudgment is affirmed.
Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.