People v. Davoy

• Decision Date: 30 September 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Lyle F. DAVOY, Sr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 1301

38 N.Y.S.3d 311

2016 N.Y. Slip Op. 06305

The PEOPLE of the State of New York, Respondent,

v.Lyle F. DAVOY, Sr., Defendant–Appellant.

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

Sept. 30, 2016.

Adam R. Matteson, Lowville, for Defendant–Appellant.

Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Respondent.

PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of murder in the second degree (Penal Law § 125.25[1]

). As conceded by defendant, the record of the plea colloquy establishes that he knowingly, voluntarily, and intelligently waived his right to appeal (see

People v. Dean, 48 A.D.3d 1244, 1244–1245, 852 N.Y.S.2d 545, lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 ), and that valid waiver encompasses his challenge to the factual sufficiency of the plea allocution (see

People v. Griffin, 120 A.D.3d 1569, 1570, 993 N.Y.S.2d 404, lv. denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 ; People v. Irvine, 42 A.D.3d 949, 950, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 ). Moreover, defendant failed to preserve for our review his contention that the plea colloquy was factually insufficient inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction on that ground (see

People v. Lawrence, 118 A.D.3d 1501, 1501, 988 N.Y.S.2d 384, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 ; People v. Kozody, 74 A.D.3d 1907, 1908, 904 N.Y.S.2d 846, lv. denied 15 N.Y.3d 806, 908 N.Y.S.2d 166, 934 N.E.2d 900 ), and this case does not fall within the rare exception to the preservation rule (see

Lawrence, 118 A.D.3d at 1501–1502, 988 N.Y.S.2d 384 ; see generally

People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Although defendant's initial statements during the factual allocution negated the element of intent to cause death, defendant's subsequent statements “ ‘removed any doubt’ ” regarding his intent to cause the victim's death (

People v. Manor, 121 A.D.3d 1581, 1582–1583, 993 N.Y.S.2d 424

, affd. 27 N.Y.3d 1012, 35 N.Y.S.3d 272, 54 N.E.3d 1143 ; see

People v. Trinidad, 23 A.D.3d 1060, 1060, 804 N.Y.S.2d 876, lv. denied 6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168 ). Specifically, defendant agreed that, by loading the gun, pointing it at the victim, and firing it, he was intentionally causing the death of the victim and that the incident in fact caused the death of the victim. To the extent that defendant contends that County Court was required to conduct further inquiry regarding a possible affirmative defense, we reject that contention inasmuch as defendant said nothing during the plea colloquy that “ ‘raised the possibility of a viable [extreme emotional disturbance] defense’ ” (Manor, 121 A.D.3d at 1582, 993 N.Y.S.2d 424 ; see

People v. Hart, 114 A.D.3d 1273, 1273, 980 N.Y.S.2d 863, lv. denied 23 N.Y.3d 963, 988 N.Y.S.2d 570, 11 N.E.3d 720 ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.