People v Herrera

People v Herrera 2017 NY Slip Op 04232 Decided on May 30, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 30, 2017
Acosta, P.J., Friedman, Andrias, Webber, Gesmer, JJ.
4142 250/14

[*1]The People of the State of New York, Respondent,

v

Jose Herrera, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered February 28, 2014, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Because defendant had an opportunity to move to withdraw his plea, but did not do so, his challenge to the voluntariness of the plea is unpreserved (see People v Conceicao, 26 NY3d 375, 381 [2015]), and we decline to review it in the interest of justice. The narrow exception to the preservation rule (see People v Lopez, 71 NY2d 662, 666 [1988]) does not apply, because "[d]efendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification [or intoxication] defense" (People v Pastor, 28 NY3d 1089, 1090-1091 [2016]). As an alternative holding, we find that the sentencing court had no obligation to conduct a sua sponte inquiry into postplea statements by defendant that were reflected in the presentence report (see e.g. People v Bryan, 129 AD3d 524 [1st Dept 2015], lv denied 26 NY3d 965 [2015]). In any event, there is no indication in the postplea statements, or elsewhere in the record, to suggest that defendant had any viable defenses.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 30, 2017

CLERK