People v. DeCenzo, 107521.

• Decision Date: 29 October 2015
• Docket Number: 107521.
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel DeCENZO, Appellant.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1160

18 N.Y.S.3d 760

2015 N.Y. Slip Op. 07869

The PEOPLE of the State of New York, Respondent

v.Daniel DeCENZO, Appellant.

107521.

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

Oct. 29, 2015.

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: EGAN JR., J.P., ROSE, DEVINE and CLARK, JJ.

Opinion

EGAN JR., J.P.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered September 9, 2014 in Albany County, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Pursuant to a negotiated agreement, defendant waived his right to appeal and pleaded guilty to a single-count indictment charging him with robbery in the second degree. The charge stemmed from an incident wherein defendant forcibly stole a purse from an 89–year–old woman, causing her to fall to the ground and sustain various injuries. Defendant thereafter was sentenced—consistent with the terms of the plea agreement—to seven years in prison followed by three years of postrelease supervision. Defendant now appeals.

We affirm. Although defendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal, this claim is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Hudson, 130 A.D.3d 1320, 1320, 14 N.Y.S.3d 231 [2015] ; People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014] ). Moreover, the narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during his plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013] ; see also People v. Carr, 127 A.D.3d 1503, 1504, 7 N.Y.S.3d 700 [2015] ). Although defendant indeed indicated that he had taken Xanax prior to committing the underlying crime, defendant did not contend that he was unable to recall the subject events (compare People v. Jimenez, 110 A.D.3d 740, 741, 972 N.Y.S.2d 100 [2013] ; People v. Osgood, 254 A.D.2d 571, 572, 681 N.Y.S.2d 365 [1998] ). More to the point, County Court specifically asked defendant if he was aware of “the concept of intoxication,” which the court then accurately explained could be considered by a jury with regard to the required element of intent (see generally People v. Beaty, 22 N.Y.3d 918, 921, 977 N.Y.S.2d 172, 999 N.E.2d 535 [2013] ), and further inquired as to whether defendant had discussed this with his attorney. In response, defendant acknowledged that he had discussed a potential intoxication “defense” with counsel and indicated that he had no further questions for either County Court or defense counsel in this regard. Under these circumstances, we are satisfied...