People v Smallwood (Otha)

[*1] People v Smallwood (Otha) 2005 NY Slip Op 52127(U) [10 Misc 3d 136(A)] Decided on December 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2005-129 W CR

The People of the State of New York, Respondent,

against

Otha Smallwood, Appellant.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran, J.), rendered December 20, 2004. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree.

Judgment of conviction unanimously affirmed.

While defendant failed to move in the court below to withdraw his guilty plea (see CPL 220.60) or vacate the judgment of conviction (see CPL 440.10), he argues that the record in the case at bar sufficiently establishes that the allocution casts significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea thereby allowing for appellate review of such issues (see People v Lopez, 71 NY2d 662, 666 [1988]). Upon a review of the entire allocution, we find that the additional inquiry of defendant as to whether he committed acts which supported the charge of assault in the third degree, and his affirmative response thereto, were sufficient to establish defendant's
guilt of assault in the third degree and to show that his plea of guilty was entered knowingly, intelligently and voluntarily (see People v Harris, 61 NY2d 9, 19 [1983]; see also Boykin v Alabama, 395 US 238, 244 [1969]). Moreover, the court was under no obligation to conduct a sua sponte inquiry into defendant's denial of guilt to the probation officer preparing the pre-sentence report (see e.g. People v Toussaint, 294 AD2d 129 [2002]; People v Pantoja, 281 AD2d 245 [2001]).
Decision Date: December 19, 2005