People v. Cooper

34 A.D.3d 827, 823 N.Y.S.2d 917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 2006
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered August 30, 2005, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that the court should have conducted a further inquiry at sentencing in light of his assertion of innocence in the presentence investigation report is unpreserved for appellate review (see People v Pellegrino, 60 NY2d 636 [1983]; People v Tinsley, 32 AD3d 447 [2006]; People v Steed, 133 AD2d 433 [1987]). The rare case exception to the preservation requirement is inapplicable (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Mead, 27 AD3d 767, 767-768 [2006]). In any event, the record demonstrates that the defendant’s plea of guilty was valid (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Lewis, 61 NY2d 9, 17).

The defendant’s claim that the court erred in fading to, sua sponte, order an examination to determine if he had a clear head and understood the plea proceeding is without merit (see People v Ramirez, 29 AD3d 1022 [2006]; People v Pryor, 11 AD3d 565, 566 [2004]; People v Gomez, 256 AD2d 356 [1998]; People v Rowley, 222 AD2d 718 [1995]).

It is unnecessary to review the defendant’s challenge to his waiver of his right to appeal since the issues raised on this appeal would not have been foreclosed from review by a valid waiver of right to appeal (cf. People v Stewart, 30 AD3d 624 [2006]). Miller, J.E, Santucci, Goldstein, Skelos and Lunn, JJ., concur.