| People v Rosario |
| 2022 NY Slip Op 01849 [203 AD3d 1404] |
| March 17, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John D. Rosario, Appellant. |
Erin C. Morigerato, Albany, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John D. Kelley of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered March 8, 2019, convicting defendant upon his plea of guilty of the crime of attemptedassault in the first degree.
Defendant was charged in a three-count indictment with attempted murder in the seconddegree, attempted assault in the first degree and assault in the second degree stemming from anincident in a grocery store parking lot wherein defendant approached a vehicle and shot anoccupant in the arm. Pursuant to a negotiated plea agreement, defendant pleaded guilty toattempted assault in the first degree in full satisfaction of the indictment. County Court sentenceddefendant, in accord with the terms of the plea agreement, to a prison term of 12 years followedby five years of postrelease supervision. Defendant appeals.
Defendant contends that his plea was not voluntarily entered and that he received ineffectiveassistance of counsel. Defendant's contentions are not preserved for our review as the record doesnot reflect that defendant made an appropriate postallocution motion despite an opportunity to doso (see People v Dickerson, 198AD3d 1190, 1192-1194 [2021]; People v Sydlosky, 181 AD3d 1094, 1094-1095 [2020]; People v Tariq, 166 AD3d 1248,1248 [2018], lv denied 32 NY3d 1178 [2019]). Further, we are unpersuaded that thenarrow exception to the preservation rule was implicated as defendant did not make any"statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwisecalled into question the voluntariness of his plea" (People v Daniels, 193 AD3d 1179, 1180 [2021] [internal quotationmarks, brackets and citations omitted]; see People v Velazquez, 194 AD3d 1181, 1183 [2021], lvdenied 37 NY3d 995 [2021]).
To the extent that defendant made statements for the first time to the Probation Departmentthat he was "hearing voices" at the time of the subject offense, "County Court was under noobligation to conduct any further inquiry in response to this belated, postplea assertion,"particularly given that defendant subsequently acknowledged during the probation interview thatany mental health issues were self-diagnosed (People v Allen, 166 AD3d 1210, 1210-1211 [2018] [internalquotation marks and citations omitted], lv denied 32 NY3d 1201 [2019]; see People v Jackson, 159 AD3d1276, 1276-1277 [2018], lv denied 31 NY3d 1149 [2018]; People v Osman, 151 AD3d 494,494-495 [2017], lv denied 30 NY3d 982 [2017]). We have reviewed defendant'scontention that the statutorily-permissible sentence was harsh and excessive and find no abuse ofdiscretion or extraordinary circumstances warranting a reduction of the agreed-upon sentence inthe interest of justice (see People vWarner, 194 AD3d 1098, 1106 [2021], lv denied 37 NY3d 1030 [2021]).
Lynch, Pritzker, Colangelo and McShan, JJ., concur. Ordered that the judgment isaffirmed.