| People v Talbert |
| 2020 NY Slip Op 04412 [186 AD3d 508] |
| August 5, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Talbert, Appellant. |
Janet E. Sabel, New York, NY (Antonio Villaamil of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J. Twersky ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew J.D'Emic, J.), rendered October 10, 2017, convicting him of attempted robbery in the seconddegree and assault in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with attempted robbery in the second degree, attempted robberyin the third degree, attempted grand larceny in the fourth degree, attempted petit larceny, andassault in the third degree. On August 2, 2016, he pleaded guilty to attempted robbery in thesecond degree and assault in the third degree. As part of the plea agreement, the defendant wouldattend the Brooklyn Mental Health Court treatment program (hereinafter the treatment program)with the promise that if he successfully completed the treatment program, he would be sentencedto a conditional discharge, and if he failed to successfully complete the treatment program thenhe would be sentenced to an aggregate determinate term of imprisonment of two years plus aperiod of postrelease supervision of two years. The defendant did not successfully complete thetreatment program and on October 10, 2017, the Supreme Court sentenced him to a determinateterm of imprisonment of two years plus a period of postrelease supervision of two years on theconviction of attempted robbery in the second degree and a definite term of imprisonment of oneyear on the conviction of assault in the third degree, with the sentences to run concurrently.
The defendant's contention that his plea of guilty to attempted robbery in the second degreewas not knowing, voluntary, and intelligent because there was a possible claim of right defense isunpreserved for appellate review, as the defendant did not move to withdraw his plea orotherwise raise this issue before the Supreme Court (see CPL 220.60 [3]; 470.05 [2];People v Lopez, 71 NY2d 662, 665-666 [1988]). Furthermore, the "rare case" exceptionto the preservation requirement set forth in People v Lopez (71 NY2d at 666) does notapply because the defendant's recitation of the facts underlying the crime of attempted robbery inthe second degree did not raise the possibility of a claim of right defense (see People v Pastor, 28 NY3d1089, 1090-1091 [2016]). Contrary to the defendant's contention, statements in the felonycomplaint and presentence investigation report attributed to the defendant did not obligate thecourt to conduct a sua sponte inquiry into a possible claim of right defense (see People v Anderson, 170 AD3d878 [2019]).
The defendant contends that his plea was not knowing, voluntary, and intelligent because theSupreme Court misadvised him of a constitutional right he was forfeiting by pleading guilty. Thedefendant's contention is unpreserved for appellate review because the defendant did not move tovacate his plea or otherwise raise the issue before the court (see CPL 220.60 [3]; 470.05[2]; People v Conceicao, 26 NY3d375, 382 [2015]; People vTyrell, 22 NY3d 359, 364 [2013]; People v Peque, 22 NY3d 168, 182 [2013]). In any event, therecord affirmatively demonstrates the defendant's understanding and waiver of certainconstitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty (seePeople v Harris, 61 NY2d 9, 19-20 [1983]; People v Sirico, 135 AD3d 19, 22 [2015]; People v Isaiah S., 130 AD3d 1081[2015]).
The defendant contends that the sentence imposed on the conviction of attempted robbery inthe second degree was excessive. The defendant received the minimum term of imprisonmentauthorized for a class D violent felony (see Penal Law §§ 70.02 [3] [c];110.00, 160.10 [2] [a]), so we have no authority to reduce that component of his sentence in theinterest of justice (see People vAnastasiou, 162 AD3d 1062 [2018]). Contrary to the defendant's contention, thetwo-year period of postrelease supervision imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]). Dillon, J.P., Hinds-Radix, Barros and Brathwaite Nelson, JJ.,concur.