| People v Blankenbaker |
| 2021 NY Slip Op 04928 [197 AD3d 1353] |
| September 2, 2021 |
| Appellate Division, Third Department |
[*1](September 2, 2021)
| The People of the State of New York,Respondent, v William F. Blankenbaker III, Appellant. |
Stephen J. Carney, Schenectady, for appellant.
Lorraine Diamond, District Attorney, Fonda (James P. Melita of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered April 23, 2018, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the first degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal contempt inthe first degree. County Court thereafter sentenced defendant, as a second felony offender, to aprison term of 1
Defendant's contention that the plea was not knowing, voluntary and intelligent isunpreserved for our review as the record does not reflect that an appropriate postallocutionmotion was made (see People vBrown, 191 AD3d 1047, 1047 [2021]; People v Botts, 191 AD3d 1044, 1045 [2021], lv denied 36NY3d 1095 [2021]). We are unpersuaded by defendant's assertion that statements he madeduring the plea colloquy and at sentencing negated an element of the crime, were inconsistentwith his guilt or otherwise called into question the voluntariness of his plea, so as to trigger thenarrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662,666 [1988]).
As relevant here, a defendant commits the offense of criminal contempt in the first degreewhen he or she intentionally disobeys an order of protection of which he or she has actualknowledge because he or she was present in court when the order was issued, the order requiresthe defendant to stay away from the protected party and the defendant has been convicted ofcriminal contempt in the first or second degree during the preceding five years (see PenalLaw § 215.51 [c]). When asked by County Court at the commencement of the pleaproceeding whether it was his decision to enter a guilty plea, defendant responded, "Yeah, kindof. I mean, I'm guilty and I'm not guilty. I mean it's a catch-22, your Honor." Thereafter, the courtproceeded to the plea allocution, during which defendant answered in the affirmative when askedif he was pleading guilty because he was, in fact, guilty of the offense and was doing so freelyand voluntarily.
Additionally, defendant affirmatively responded when County Court asked whether heintentionally disobeyed the mandate, of which he was aware, that he stay away from the personon whose behalf the order of protection was issued. When the court asked again whether he hadintentionally disobeyed the order of protection, defendant answered, "Yes, she came to me, yes.But, yes, I violated it because I didn't leave fast enough, I guess, so, yes, I violated it." Uponfurther inquiry by the court, defendant acknowledged that he had inappropriate contact with suchperson. Finally, defendant acknowledged that he had a prior conviction of criminal contempt inthe second degree within the preceding five years. Defendant's affirmative responses to thecourt's inquiries were sufficient to remove any doubt about defendant's guilt or otherwise callinto question the voluntariness of his plea (see People v Lopez, 71 NY2d [*2]at 666-667; People v Larock, 139 AD3d 1241, 1242 [2016], lv denied28 NY3d 932 [2016]). Further, neither defendant's assertion in the presentence investigationinterview that he was innocent because the police did not have evidence that he committed thecrime nor any statements made at sentencing negated the element of intent so as to trigger furtherinquiry by the court (see People vPerez, 82 AD3d 1451, 1451 [2011], lv denied 17 NY3d 799 [2011]).
Egan Jr., J.P., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.