People v. Gomez

• Decision Date: 23 March 2016
• Citation: 27 N.Y.S.3d 650,137 A.D.3d 1161
• Parties: The PEOPLE, etc., respondent, v. Cesar GOMEZ, appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1161

27 N.Y.S.3d 650

The PEOPLE, etc., respondent,

v.Cesar GOMEZ, appellant.

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

March 23, 2016.

Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.

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

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the County Court, Dutchess County(Forman, J.), rendered May 15, 2014, convicting him of murder in the second 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 voluntary survives his valid waiver of the right to appeal (seePeople v. Fontanet,126 A.D.3d 723, 2 N.Y.S.3d 371;People v. Lujan,114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ).However, there is no merit to the defendant's contention that his plea of guilty to murder in the second degree was involuntary on the ground that the County Court failed to conduct an adequate inquiry into a potential justification defense.Rather, an inquiry was made, revealing that the defendant knowingly and voluntarily entered a plea of guilty with a full understanding of the consequences, and that there was no possibility of a justification defense in this case(seePeople v. Lopez,71 N.Y.2d 662, 667, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Sierra,256 A.D.2d 598, 599, 683 N.Y.S.2d 563;Matter of Brian K.J.,223 A.D.2d 643, 644, 636 N.Y.S.2d 417;cf.People v. Riley,91 A.D.2d 671, 457 N.Y.S.2d 122 ).Having failed to object to the inquiry conducted by the court, the defendant did not preserve for appellate review any challenge to the adequacy of the remedial action taken by the court(seePeople v. Lopez,71 N.Y.2d at 668, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).Furthermore, the defendant's postplea assertions regarding a justification defense contradicted the admissions he made under oath at his plea allocution, were recanted by the defendant at sentencing, and were insufficient to warrant withdrawal of his plea (seePeople v. Dixon,29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;People v. Glusko,114 A.D.3d 701, 979 N.Y.S.2d 669;People v. Delarosa,104 A.D.3d 956, 960 N.Y.S.2d 915;People v. Dazzo,92 A.D.3d 796, 796, 938 N.Y.S.2d 446 ).

Moreover, the defendant failed to preserve for appellate review his contention that he was threatened or coerced into pleading guilty, since he did not move to withdraw his plea (seeCPL 220.60[3]; 440.10; 470.05[2];People v. Lopez,71 N.Y.2d at 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Santiago,71 A.D.3d 703, 704, 894 N.Y.S.2d 904;People v. Mitchell,69 A.D.3d 883, 892 N.Y.S.2d 777 ).In any event, contrary to the defendant's contention, the County Court did not threaten to sentence him to an illegal maximum prison term upon conviction after trial, but properly informed the defendant that he faced potential consecutive sentences in that event (seePeople v. Salcedo,92 N.Y.2d 1019, 1021, 684 N.Y.S.2d 480, 707 N.E.2d 435;People v. Brown,80 N.Y.2d 361, 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353;People v. Okafore,...