| People v Brown |
| 2021 NY Slip Op 00596 [191 AD3d 1047] |
| February 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Levi Brown, Appellant. |
Jonathan Rosenberg, PLLC, New York City (Jonathan Rosenberg of counsel), forappellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered February 13, 2018, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the third degree.
In March 2017, defendant was indicted and charged with two counts of criminal possessionof a controlled substance in the third degree. Two months later, defendant was indicted andcharged with two counts of criminal sale of a controlled substance in the third degree. Upon thePeople's motion, the two indictments were consolidated for trial, and the counts contained thereinwere renumbered. Defendant subsequently agreed to plead guilty to the reduced charge ofattempted criminal possession of a controlled substance in the third degree (under count 1 of theconsolidated indictment) with the understanding that he would receive a split sentence of sixmonths' incarceration followed by five years of probation. The plea agreement also requireddefendant to waive his right to appeal. Following defendant's guilty plea, County Court imposedthe agreed-upon sentence. This appeal ensued.
We affirm. Defendant's challenge to the voluntariness and/or factual sufficiency of his plea isunpreserved for our review absent evidence of an appropriate postallocution motion (see People v Brito, 184 AD3d 900,901 [2020]; People v Berkman, 184AD3d 898, 898 [2020]; People vHatch, 165 AD3d 1321, 1321-1322 [2018], lv denied 32 NY3d 1125 [2018]).Contrary to defendant's assertion, the narrow exception to the preservation requirement was nottriggered, as defendant did not make any statements that negated an element of the chargedcrime, were inconsistent with his guilt or otherwise called into question the voluntariness of hisplea (see People v Favreau, 174AD3d 1226, 1228 [2019], lv denied 34 NY3d 980 [2019]; People v King, 166 AD3d 1236,1237 [2018]). In any event, "where, as here, a defendant pleads to a lesser crime as part of a pleabargain, the court is not required to engage in a factual recitation in order to establish theelements of the crime" (People v Favreau, 174 AD3d at 1228 [internal quotation marksand citation omitted]; see People vCook, 150 AD3d 1543, 1544 [2017]). Defendant's remaining arguments, to the extentnot specifically addressed, have been examined and found to be lacking in merit, and thejudgment of conviction is affirmed.
Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.