People v Green

People v Green 2018 NY Slip Op 07269 Decided on October 30, 2018 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 October 30, 2018
Sweeny, J.P., Mazzarelli, Kahn, Oing, Singh, JJ.
7490 3519/13

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

v

Dushawn Green, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Amy Donner and Justine M. Luongo of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered May 28, 2014, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him to a term of one to three years, unanimously affirmed.

Defendant's challenge to the voluntariness of his plea is unpreserved, and we decline to review it in the interest of justice. Because "[d]efendant said nothing [at] the plea colloquy or . . . sentencing proceeding that negated an element of the crime," the narrow exception to the preservation rule does not apply (People v Pastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 665 [1988]).

At sentencing, defendant mentioned that he did not steal anything at the time of the burglary to which he had pleaded guilty. The court appropriately advised defendant that burglary did not require an actual theft, but only the intent to commit a crime such as larceny, whereupon defendant said nothing further. Accordingly, there was no need for any further inquiry. The court was not required to inquire into other statements that defendant made in presentence interviews (see e.g. People v Rojas, 159 AD3d 468 [1st Dept 2018], lv denied 31 NY3d 1086 [2018]). In any event, the plea allocution establishes the voluntariness of the plea.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2018

CLERK