People v. Anderson

• Decision Date: 13 March 2019
• Docket Number: 2016–09847
• Parties: The PEOPLE, etc., Respondent, v. Kyshia L. ANDERSON, Appellant. (S.C.I. No. 10201/15)
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 878

93 N.Y.S.3d 864 (Mem)

The PEOPLE, etc., Respondent,

v. Kyshia L. ANDERSON, Appellant.(S.C.I. No. 10201/15)

2016–09847

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 20, 2018

March 13, 2019

Janet E. Sabel, New York, N.Y. (Jeffrey Dellheim of counsel) for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Tatiana N. Galbrecht on the brief), for respondent.

JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dorothy Chin–Brandt, J., at plea; Suzanne J. Melendez, J., at sentencing), rendered September 14, 2015, convicting her of criminal sale of a controlled substance in the fifth degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that her plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as the defendant did not move to withdraw her plea or otherwise raise this issue before the Supreme Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ). Contrary to the defendant's contention, the "rare case" exception to the preservation requirement does not apply because the defendant's allocution did not cast significant doubt on her guilt, negate an essential element of the crime, or call into question the voluntariness of her plea ( People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). In any event, the record demonstrates that the defendant's plea was entered knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ). Contrary to the defendant's contention, postplea statements attributed to the defendant in the presentence report and other statements at sentencing did not obligate the court to conduct a sua sponte inquiry into the basis for the plea (see People v. Bailey, 158 A.D.3d 948, 949, 71 N.Y.S.3d 667 ; People v. Smith, 148 A.D.3d 939, 940, 49 N.Y.S.3d 501 ; People v. Maldonado, 144 A.D.3d 706, 707, 39 N.Y.S.3d 826 ; People v. Ellis, 142 A.D.3d 509, 510, 35 N.Y.S.3d 920 ; People v. Pastor, 136 A.D.3d 493, 25 N.Y.S.3d 160, affd 28...