People v Brown (Gerry)

[*1] People v Brown (Gerry) 2012 NY Slip Op 50096(U) Decided on January 20, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., NICOLAI and IANNACCI, JJ
2010-2505 OR CR. -x

The People of the State of New York, Respondent,

against

Gerry G. Brown, Appellant. -x

Appeal from a judgment of the Justice Court of the Town of Warwick, Orange County (Nancy Brenner DeAngelo, J.), rendered August 24, 2010. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child.

ORDERED that the judgment of conviction is affirmed.

Defendant, while represented by counsel, pleaded guilty to a charge of endangering the welfare of a child (Penal Law § 260.10 [1]). By failing to move in the Justice Court either to withdraw his guilty plea (see CPL 220.60 [3]) or to vacate the judgment of conviction (see CPL 440.10), defendant did not preserve the issue of the factual insufficiency of his plea allocution (People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Stevens, 43 AD3d 1088, 1089 [2007]), and we decline to review this issue in the interest of justice. Moreover, the narrow exception to the preservation rule described in Lopez (71 NY2d at 665-666) does not apply here, as defendant's allocution did not cast doubt on any essential element of the charged crime. Furthermore, it appears from the record that defendant knowingly, intelligently and voluntarily entered his plea and chose not to move to withdraw it upon learning of the conditions of his probation.

The sentence imposed was neither unduly harsh nor excessive. The Justice Court did not improvidently exercise its discretion, under the circumstances presented, in imposing three years' probation, the previously agreed upon sentence, or in including among the terms of probation sex offender type conditions (see People v Wahl, 302 AD2d 976 [2003]; People v Bania, 9 Misc 3d 135[A], 2005 NY Slip Op 51682[U] [App Term, 9th & 10th Jud Dists 2005]).

Accordingly, the judgment of conviction is affirmed.

LaCava, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 20, 2012