| People v Berkman |
| 2020 NY Slip Op 03143 [184 AD3d 898] |
| June 4, 2020 |
| Appellate Division, Third Department |
[*1](June 4, 2020)
| The People of the State of New York,Respondent, v Joseph G. Berkman Jr., Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered December 19, 2016, convicting defendant upon his plea of guilty of the crime ofburglary in the third degree (two counts).
Defendant waived indictment and agreed to be prosecuted pursuant to two superior courtinformations, each charging him with one count of burglary in the third degree, with theunderstanding that he would be sentenced as a second felony offender to concurrent prison termsof 2 to 6 years. Pursuant to the plea agreement, defendant's plea also would satisfy otherthen-pending charges. After he pleaded guilty to both charges but prior to sentencing, defendant,who was being held in the local jail, was charged with promoting prison contraband in the firstdegree. Following an adjournment, the parties appeared for sentencing, at which time CountyCourt indicated that it intended to impose an enhanced sentence of 3 to 6 years upon each ofdefendant's convictions (to be served concurrently) in exchange for the People's dismissal of thepromoting prison contraband charge. After advising defendant that he could "get [his] plea back"because the court could not impose the initially-promised sentence and affording defendant timeto confer with counsel, defendant indicated that he wished to proceed, and County Courtsentenced defendant as a second felony offender to concurrent prison terms of 3 to 6 years. Thisappeal ensued.
We affirm. Defendant's challenge to the factual sufficiency and/or voluntariness of his plea isunpreserved for our review in the absence of an appropriate postallocution motion (see People v King, 166 AD3d1236, 1237 [2018]; People vSmall, 166 AD3d 1237, 1238 [2018]; People v Hatch, 165 AD3d 1321, 1321-1322 [2018], lvdenied 32 NY3d 1125 [2018]). The narrow exception to the preservation requirement wasnot triggered here, as defendant did not make any statements during the plea colloquy that wereinconsistent with his guilt, negated an element of the charged crime or otherwise called intoquestion the voluntariness of his plea (see People v Schmidt, 179 AD3d 1384, 1385 [2020]; People v Mackie, 177 AD3d 1192,1193 [2019], lv denied 34 NY3d 1130 [2020]; People v Alexander, 174 AD3d 1068, 1069 [2019], lvdenied 34 NY3d 949 [2019]). Further, "nothing on the face of the [plea] colloquy calls intoquestion . . . defendant's . . . capacity to enter into it" (People vMackie, 177 AD3d at 1193 [internal quotation marks and citations omitted]; see People v Lamb, 162 AD3d1395, 1396 [2018], lv denied 32 NY3d 1112 [2018]). Under these circumstances, wediscern no basis upon which to take corrective action in the interest of justice.
Garry, P.J., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.