People v. Gordon

• Decision Date: 28 September 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermaine J. GORDON, Defendant-appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1230
951 N.Y.S.2d 278
2012 N.Y. Slip Op. 06399

The PEOPLE of the State of New York, Respondent,
v.
Jermaine J. GORDON, Defendant-appellant.

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

Sept. 28, 2012.

D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.

David W. Foley, District Attorney, Mayville (Lynn Schaffer of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his guilty plea of assault in the second degree (Penal Law § 120.05[1] ). Defendant's contention “that his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime but simply replied to County Court's questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution’ ” ( People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489,lv. denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060;see People v. Brown, 66 A.D.3d 1385, 1385, 885 N.Y.S.2d 660,lv. denied14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566). “[D]efendant failed to preserve that challenge for our review by moving to withdraw the plea or ... to vacate the judgment of conviction” ( People v. Jamison, 71 A.D.3d 1435, 1436, 896 N.Y.S.2d 780,lv. denied14 N.Y.3d 888, 903 N.Y.S.2d 777, 929 N.E.2d 1012;see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, “[d]efendant's monosyllabic responses to [the c]ourt's questions did not render the plea invalid. Moreover, there is no requirement that a defendant personally recite the facts underlying his or her crime[ ] during the plea colloquy, and, here, [t]he record establishes that defendant confirmed the accuracy of [the court's] recitation of the facts underlying the crime” ( People v. Bullock, 78 A.D.3d 1697, 1698, 910 N.Y.S.2d 750,lv. denied16 N.Y.3d 742, 917 N.Y.S.2d 624, 942 N.E.2d 1049 [internal quotation marks and citations omitted]; see Jamison, 71 A.D.3d at 1436, 896 N.Y.S.2d 780;

[951 N.Y.S.2d 279]

People v. Bailey, 49 A.D.3d 1258, 1259, 852 N.Y.S.2d 892,lv. denied10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404).

Finally, the sentence is not unduly harsh or severe.

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