People v Harvey (Terrice)

[*1] People v Harvey (Terrice) 2005 NYSlipOp 50485(U) Decided on April 6, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS -x PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2003-1340 Q CR -x

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

TERRICE HARVEY, Appellant. -x

Appeal by defendant from a judgment of the Criminal Court, Queens County (M. Aloise, J., plea; D. Modica, J., sentence), rendered on March 12, 2003, convicting him, upon his plea of guilty, of assault in the third degree (Penal Law § 120.00) and imposing sentence.

Judgment of conviction unanimously affirmed.

Contrary to defendant's contention, the record establishes that the court below properly conducted further inquiry of defendant after he denied that he had an intent to cause physical injury to the victim. Defendant acknowledged slapping the victim twice
which caused her face to swell. While a petty slap is insufficient to establish guilt of assault in the third degree (see People v Facey, 115 AD2d 11 [1986], affd 69 NY2d 836 [1987]), defendant never indicated that these were petty slaps and the fact that his victim sustained swelling to her face would indicate that the physical contact was more than petty. Moreover, the court properly concluded that defendant evinced an intent to cause physical injury to the victim based upon the act itself (see People v Bracey, 41 NY2d 296, 300-301 [1977]). In any event, in the absence of a showing that the recitation of the facts underlying the crime pleaded to "casts significant doubt upon the defendant's guilt or calls into question the voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666 [1988]), the defendant's failure to move in the court below to vacate the judgment of conviction (CPL 440.10) or withdraw the plea (CPL 220.60 [3]) precludes appellate review of defendant's challenge to the factual sufficiency of the plea allocution.
Decision Date: April 06, 2005