People v. Ballard

• Decision Date: 11 December 2013
• Citation: 976 N.Y.S.2d 404,112 A.D.3d 731,2013 N.Y. Slip Op. 08260
• Parties: The PEOPLE, etc., respondent, v. Edward BALLARD, appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 731

976 N.Y.S.2d 404

2013 N.Y. Slip Op. 08260

The PEOPLE, etc., respondent,

v.Edward BALLARD, appellant.

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

Dec. 11, 2013.

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered June 5, 2012, convicting him of attempted 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 contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( see People v. Phillip B., 111 A.D.3d 649, 974 N.Y.S.2d 122 [2d Dept.2013]; People v. Gaines, 110 A.D.3d 1099, 974 N.Y.S.2d 266; People v. Antoine, 59 A.D.3d 560, 872 N.Y.S.2d 283; People v. Castillo–Cordero, 54 A.D.3d 1054, 864 N.Y.S.2d 567; People v. Bevins, 27 A.D.3d 572, 811 N.Y.S.2d 429; People v. Martin, 7 A.D.3d 640, 776 N.Y.S.2d 499). In any event, contrary to the defendant's contention, the record establishes that the defendant's plea of guilty was voluntarily, intelligently, and knowingly entered ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687).

In addition, by failing to challenge the sufficiency of his factual allocution before the County Court, the defendant has not preserved this issue for appellate review ( see People v. Crespo, 153 A.D.2d 573, 544 N.Y.S.2d 499; People v. Caban, 131 A.D.2d 863, 517 N.Y.S.2d 222). In any event, “because the defendant pleaded guilty to a lesser crime than the crimes charged in the indictment and since the allocution establishes that the defendant understood the charges against him, a factual basis for the plea was unnecessary” (People v. McKenzie, 98 A.D.3d 749, 750, 950 N.Y.S.2d 177; see People v. Martin, 239 A.D.2d 436, 658 N.Y.S.2d 341).

MASTRO, J.P., BALKIN, SGROI and HINDS–RADIX, JJ., concur.