People v. Kemp

Appellate Division of the Supreme Court of New York

People v. Kemp

288 A.D.2d 635, 732 N.Y.S.2d 694, 2001 N.Y. App. Div. LEXIS 10859

Appellate Division of the Supreme Court of the State of New York·Decided November 15, 2001·Published·Cited by 48 cases

Opinion

Lahtinen, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered September 19, 2000, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

Although defendant’s waiver of the right to appeal does not in and of itself preclude appellate review of the voluntariness of his plea (see, People v Conyers, 227 AD2d 793, lv denied 88 NY2d 982), his failure to move either to withdraw the plea or to vacate the judgment of conviction generally precludes review of his challenge to the factual sufficiency of the plea allocution (see, People v Lopez, 71 NY2d 662, 665). By failing to make the appropriate motion, defendant deprived County Court of the [636] opportunity to address the alleged deficiency and, if necessary, take corrective action (see, People v Tumminia, 272 AD2d 634). There is a narrow exception to the preservation rule where a defendant’s factual recitation casts significant doubt on his guilt by negating an essential element of the crime (see, People v Lopez, supra, at 666). Inasmuch as defendant made no statements inconsistent with his guilt during the colloquy wherein County Court asked him questions concerning his conduct which constituted the commission of the crime, the exception is not applicable in this case (see, People v Russo, 191 AD2d 737). In any event, a plea allocution is generally sufficient where, as here, a defendant’s affirmative responses to County Court’s questions established the elements of the crimes charged and there is no indication in the record that the voluntary plea was baseless or improvident (see, People v Empey, 242 AD2d 839, lv denied 91 NY2d 834). The absence of any claim of facts which make the plea unjust is fatal to defendant’s argument, for a plea should never be undone “because of some omission in inquiry at the time of a plea without a showing of prejudice” (People v Nixon, 21 NY2d 338, 355-356). Defendant’s remaining arguments have been considered and rejected as without merit.

Mercure, J. P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed.

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Lahtinen, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered September 19, 2000, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

Although defendant’s waiver of the right to appeal does not in and of itself preclude appellate review of the voluntariness of his plea (see, People v Conyers, 227 AD2d 793, lv denied 88 NY2d 982), his failure to move either to withdraw the plea or to vacate the judgment of conviction generally precludes review of his challenge to the factual sufficiency of the plea allocution (see, People v Lopez, 71 NY2d 662, 665). By failing to make the appropriate motion, defendant deprived County Court of the [636] opportunity to address the alleged deficiency and, if necessary, take corrective action (see, People v Tumminia, 272 AD2d 634). There is a narrow exception to the preservation rule where a defendant’s factual recitation casts significant doubt on his guilt by negating an essential element of the crime (see, People v Lopez, supra, at 666). Inasmuch as defendant made no statements inconsistent with his guilt during the colloquy wherein County Court asked him questions concerning his conduct which constituted the commission of the crime, the exception is not applicable in this case (see, People v Russo, 191 AD2d 737). In any event, a plea allocution is generally sufficient where, as here, a defendant’s affirmative responses to County Court’s questions established the elements of the crimes charged and there is no indication in the record that the voluntary plea was baseless or improvident (see, People v Empey, 242 AD2d 839, lv denied 91 NY2d 834). The absence of any claim of facts which make the plea unjust is fatal to defendant’s argument, for a plea should never be undone “because of some omission in inquiry at the time of a plea without a showing of prejudice” (People v Nixon, 21 NY2d 338, 355-356). Defendant’s remaining arguments have been considered and rejected as without merit.

Mercure, J. P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed.

People v. Kemp, 288 A.D.2d 635, 732 N.Y.S.2d 694, 2001 N.Y. App. Div. LEXIS 10859 (N.Y. Ct. App. 2001).

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