People v. Herrera

Appellate Division of the Supreme Court of New York

People v. Herrera

2017 NY Slip Op 4232, 150 A.D.3d 625, 55 N.Y.S.3d 220

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 2017

Docket4142 250/14

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 4232 (People v. Herrera) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Herrera, 2017 NY Slip Op 4232, 150 A.D.3d 625, 55 N.Y.S.3d 220 (N.Y. Ct. App. 2017).

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Opinion

Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered February 28, 2014, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Because defendant had an opportunity to move to withdraw his plea, but did not do so, his challenge to the voluntariness of the plea is unpreserved (see People v Conceicao, 26 NY3d 375, 381 [2015]), and we decline to review it in the interest of justice. The narrow exception to the preservation rule (see People v Lopez, 71 NY2d 662, 666 [1988]) does not apply, because “[defendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification [or intoxication] defense” (People v Pastor, 28 NY3d 1089, 1090-1091 [2016]). As an alternative holding, we find that the sentencing court had no obligation to conduct a sua sponte inquiry into postplea statements by defendant that were reflected in the presentence report (see e.g. People v Bryan, 129 AD3d 524 [1st Dept 2015], lv denied 26 NY3d 965 [2015]). In any event, there is no indication in the postplea statements, or elsewhere in the record, to suggest that defendant had any viable defenses.

Concur— Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.

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Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered February 28, 2014, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Because defendant had an opportunity to move to withdraw his plea, but did not do so, his challenge to the voluntariness of the plea is unpreserved (see People v Conceicao, 26 NY3d 375, 381 [2015]), and we decline to review it in the interest of justice. The narrow exception to the preservation rule (see People v Lopez, 71 NY2d 662, 666 [1988]) does not apply, because “[defendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification [or intoxication] defense” (People v Pastor, 28 NY3d 1089, 1090-1091 [2016]). As an alternative holding, we find that the sentencing court had no obligation to conduct a sua sponte inquiry into postplea statements by defendant that were reflected in the presentence report (see e.g. People v Bryan, 129 AD3d 524 [1st Dept 2015], lv denied 26 NY3d 965 [2015]). In any event, there is no indication in the postplea statements, or elsewhere in the record, to suggest that defendant had any viable defenses.

Concur— Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 4232, 150 A.D.3d 625, 55 N.Y.S.3d 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-herrera-nyappdiv-2017.

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