People v. Diallo

Decision Date13 October 2011
PartiesThe PEOPLE of the State of New York, Respondent,v.Alpha DIALLO, also known as Alpha Ismael Diallo, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

88 A.D.3d 511
930 N.Y.S.2d 194
2011 N.Y. Slip Op. 07178

The PEOPLE of the State of New York, Respondent,
v.
Alpha DIALLO, also known as Alpha Ismael Diallo, Defendant–Appellant.

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

Oct. 13, 2011.


[930 N.Y.S.2d 195]

Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.CATTERSON, J.P., RICHTER, MANZANET–DANIELS, ROMÁN, JJ.

[88 A.D.3d 511] Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered October 29, 2009, convicting defendant, upon his plea of guilty, of criminal possession in the fourth degree, and sentencing him to a term of 1 to 3 years, unanimously affirmed.

Defendant claims that, at the time of the plea allocution, the court was obligated to ask defendant if he understood he was giving up any psychiatric defense. Initially we note that defendant has not moved to withdraw his guilty plea. Moreover, this case does not come within the narrow exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), because there was nothing in the plea allocution that cast doubt on defendant's

[930 N.Y.S.2d 196]

guilt or raised any defense, psychiatric or otherwise. Accordingly, this claim is unpreserved and we decline to review it in the interest of justice.

As an alternative holding, we also reject it on the merits. The record establishes that defendant's plea was knowing, intelligent and voluntary. Defendant's mental capacity to stand trial had already been established in proceedings under CPL 730. Defendant cites to proceedings, before a different Justice, relating to a possible defense of lack of responsibility by reason of mental disease or defect ( see Penal Law § 40.15). However, nothing occurred at the plea proceeding that would trigger a duty on the court to inquire about a waiver of such a defense ( see e.g. People v. Fiallo, 6 A.D.3d 176, 177, 777 N.Y.S.2d 297 [2004], lv. denied 3 N.Y.3d 640, 782 N.Y.S.2d 411, 816 N.E.2d 201 [2004] ).

Defendant made a valid waiver of his right to appeal, in a colloquy with the court as well as in writing ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). That waiver forecloses review of defendant's contention that the sentence was harsh and...

To continue reading

Request your trial
7 cases
  • Miller v. Warden of Sing Sing Corr. Facility, 13-cv-4576 (BMC)
    • United States
    • U.S. District Court — Eastern District of New York
    • 20 Julio 2018
    ...no action to pursue it, but instead goes forward with his trial, the motion is deemed abandoned. See People v. Diallo, 88 A.D.3d 511, 511-12, 930 N.Y.S.2d 194, 196 (1st Dep't 2011) (pro se motions asserting constitutional Speedy Trial claims); People v. Ramos, 35 A.D.3d 247, 247, 825 N.Y.S.......
  • Mabry v. Neighborhood Defender Serv. Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • 13 Octubre 2011
    ...DEFENDER SERVICE, INC., et al., Defendants–Respondents.Supreme Court, Appellate Division, First Department, New York.Oct. 13, 2011. [930 N.Y.S.2d 194] Reginald Antoine Mabry, appellant pro se.McLaughlin & Stern, LLP, New York (Jacqueline C. Gerrald of counsel), for respondents.GONZALEZ, P.J......
  • People v. Hart
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Febrero 2014
    ...see People v. Cruz, 98 A.D.3d 1273, 1274, 951 N.Y.S.2d 415,lv. denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288;People v. Diallo, 88 A.D.3d 511, 511, 930 N.Y.S.2d 194,lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129;People v. Trapp, 15 A.D.3d 916, 916, 788 N.Y.S.2d 774,lv. d......
  • People v. Miller
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Enero 2013
    ...motion evinces his satisfaction with counsel and an abandonment of his unresolved constitutional application (see People v. Diallo, 88 A.D.3d 511, 511–512, 930 N.Y.S.2d 194;People v. Bigelow, 68 A.D.3d 1127, 1128, 892 N.Y.S.2d 449). The defendant's challenge to portions of the testimony of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT