People v. Campbell

• Decision Date: 24 February 2011
• Citation: 917 N.Y.S.2d 419,81 A.D.3d 1184
• Parties: The PEOPLE of the State of New York, Respondent, v. Wayne F. CAMPBELL, Appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 419 81 A.D.3d 1184 The PEOPLE of the State of New York, Respondent, v. Wayne F. CAMPBELL, Appellant. Supreme Court, Appellate Division, Third Department, New York. Feb. 24, 2011.

Erin R. Lynch, Albany, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), for respondent.

Before: ROSE, J.P., KAVANAGH, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered December 14, 2009, convicting defendant upon his plea of guilty of the crime of rape in the second degree.

Defendant was charged in a six-count indictment with rape in the second degree (five counts) and sexual abuse in the second degree. The charges stemmed from allegations that defendant had sexual intercourse with a 13-year-old girl on five different occasions in May 2009. In full satisfaction of the indictment, as well as an unrelated pending charge, defendant pleaded guilty to one count of rape in thesecond degree. Prior to sentencing,defendant corresponded with County Court indicating his desire to withdraw his plea. After County Court granted defendant two adjournments to confer with counsel on this issue, and after the court explained that he was not being sentenced as a second felony offender, defendant elected to proceed with the plea agreement. County Court thereafter imposed the agreed-upon sentence of five years in prison, to be followed by 10 years of postrelease supervision. Defendant now appeals.

We affirm. Defendant contends that his plea was not voluntarily, knowingly and intelligently entered due to the fact that County Court failed to inquire as to defendant's potential intoxication defense and because the plea allocution was insufficient. Inasmuch as defendant did not move to withdraw his plea on this ground ( see People v. Escalante, 16 A.D.3d 984, 984-985, 792 N.Y.S.2d 253 [2005], lvs. denied 5 N.Y.3d 788, 793, 801 N.Y.S.2d 809, 814, 835 N.E.2d 669, 674 [2005]; People v. Townsend, 257 A.D.2d 458, 458, 683 N.Y.S.2d 253 [1999] ) or move to vacate the judgment of conviction, the issue is unpreserved for our review ( see People v. Phillips, 30 A.D.3d 911, 911, 819 N.Y.S.2d 129 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ). Moreover, defendant did not make any statements during the plea colloquy that negated an essential element of the crime or cast doubt upon his guilt in order to trigger the narrow exception to the preservation rule ( see People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] ).

Further, defendant's claim that he was denied the effective assistance of counsel based upon counsel's failure to address an intoxication defense with County Court is similarly unpreserved for our review ( see People v. Townsend, 306 A.D.2d 761, 762, 761 N.Y.S.2d 531 [2003], lv. denied 100 N.Y.2d 625, 767 N.Y.S.2d 409, 799 N.E.2d 632 [2003] ). In any event, with regard to both claims by defendant concerning a potential intoxication defense, inasmuch as rape in the second degree does not have a specific intent element ( see Penal Law § 130.30; People v. Clark, 142 A.D.2d 976, 977, 530 N.Y.S.2d 395 [1988], lv. denied 72 N.Y.2d 1044, 534 N.Y.S.2d 943, 531 N.E.2d 663 [1988] ), an intoxication defense was unavailable to defendant ( see e.g. People v. Newton, 8 N.Y.3d 460, 464, 835 N.Y.S.2d 546, 867 N.E.2d 397 [2007]; People v. Jenks, 69 A.D.3d 1120, 1122, 891 N.Y.S.2d 766 [2...