People v. Simmons

294 A.D.2d 928, 741 N.Y.S.2d 773, 2002 N.Y. App. Div. LEXIS 4515

Opinion

—Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered February 2, 1999, convicting defendant upon her plea of guilty of assault in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant failed to preserve for our review her challenge to the factual sufficiency of the plea allocution. After defendant made statements at the initial plea proceeding casting doubt upon her guilt of assault in the first degree (Penal Law § 120.10 [1]), Supreme Court terminated the proceeding and granted defense counsel’s request for an adjournment. During the subsequent plea proceeding, the statements of defendant established that she intended to cause serious physical injury and had no viable justification defense (see People v Lopez, 71 NY2d 662, 667; see also People v Washington, 262 AD2d 868, 869-870, lv denied 93 NY2d 1029). Thus, the court fulfilled its duty to make further inquiry to ensure that defendant’s plea was knowingly, voluntarily and intelligently entered (see People v Howard, 234 AD2d 1000, 1001, lv denied 89 NY2d 1036; People v Williams, 219 AD2d 864, lv denied 88 NY2d 855), and this case does not come within the narrow exception to the preservation requirement (see Lopez, 71 NY2d at 666-668). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Hurlbutt, Burns and Lawton, JJ.