People v. Guy

• Decision Date: 15 May 2012
• Citation: 2012 N.Y. Slip Op. 03856,95 A.D.3d 1139,943 N.Y.S.2d 785
• Parties: The PEOPLE, etc., respondent, v. Gerald B. GUY, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03856
943 N.Y.S.2d 785
95 A.D.3d 1139

The PEOPLE, etc., respondent,
v.
Gerald B. GUY, appellant.

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

May 15, 2012.

Del Atwell, East Hampton, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Middletown, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County *786 (DeRosa, J.), rendered January 3, 2011, convicting him of disorderly conduct and aggravated harassment of an employee by an inmate, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea allocution was factually insufficient to establish the crime of aggravated harassment of an employee by an inmate ( see Penal Law § 240.32) is unpreserved for appellate review, since the defendant failed to move to withdraw his plea ( see CPL 470.05[2]; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Watts, 91 A.D.3d 678, 935 N.Y.S.2d 893; People v. Ortiz, 89 A.D.3d 1113, 933 N.Y.S.2d 609, lv. denied 18 N.Y.3d 927, 942 N.Y.S.2d 466, 965 N.E.2d 968). In addition, this is not one of the “rare case” exceptions to the preservation requirement, since the defendant's recitation of the facts did not negate any element of the crime, cast significant doubt on his guilt, or call into question the voluntariness of the plea ( People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, the defendant's contention is without merit. Moreover, to the extent that the defendant is challenging the “legal sufficiency of a conceded set of facts,” that challenge is foreclosed by his plea of guilty ( People v. Thomas, 53 N.Y.2d 338, 340, 441 N.Y.S.2d 650, 424 N.E.2d 537; see People v. Sposato, 79 A.D.3d 420, 913 N.Y.S.2d 36; People v. Basnight, 46 A.D.3d 697, 846 N.Y.S.2d 917).

Based upon the record before us, the defendant received the effective assistance of counsel under the federal and state constitutional standards ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. McDonald, 1 N.Y.3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131).

The defendant's remaining contentions are without merit.

DILLON, J.P., FLORIO, LOTT and SGROI, JJ., concur.