People v. Harris

Decision Date08 November 1996
PartiesPEOPLE of the State of New York, Respondent, v. Robert W. HARRIS, Appellant.
CourtNew York Supreme Court — Appellate Division

Gerald T. Barth by Kimberly Jordan, Syracuse, for Appellant.

William J. Fitzpatrick by James Maxwell, Syracuse, for Repsondent.

Before LAWTON, J.P., and FALLON, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from a judgment of conviction, upon a plea of guilty, of one count of sexual abuse in the first degree, in satisfaction of an indictment charging defendant with rape in the first degree and other offenses. The challenge by defendant to the voluntariness of his plea is in effect a challenge to the sufficiency of the colloquy with respect to the element of forcible compulsion. Defendant's waiver of the right to appeal encompasses defendant's challenges to the factual sufficiency of the plea allocution (see, People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352; People v. Cooper, 191 A.D.2d 1046, 595 N.Y.S.2d 353) and to the sentence as unduly harsh and severe (see, People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170). In addition, because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction, defendant has failed to preserve for appellate review his challenge to the factual sufficiency of the plea allocution (see, People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Ayala, 226 A.D.2d 1127, 642 N.Y.S.2d 828, lv. denied 88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350). "This is not one of those 'rare cases' in which 'defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt' " (People v. Ayala, supra, quoting People v. Lopez, supra, at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, where, as here, defendant pleads guilty to a crime less than that charged in the indictment, a factual colloquy is not required (see, People v Zimmerman, supra; People v. Tirado, 214 A.D.2d 1044, 1045, 627 N.Y.S.2d 504).

We reject defendant's contention that resentencing is required because a second felony offender statement was not filed prior to sentencing. By admitting the prior felony conviction in open court, defendant waived strict compliance with CPL 400.21 (see, People v. Stephens, 193 A.D.2d 1087, 598 N.Y.S.2d 410, lv. denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325; People v. Diomede, 185 A.D.2d 709, 587 N.Y.S.2d 868, lv. denied 80 N.Y.2d 928, 589 N.Y.S.2d 856, 603 N.E.2d 961). The statement of defendant that he had a reason to buy the weapon that was the subject of the prior conviction does not call into question the constitutionality of the prior conviction (see, ...

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10 cases
  • People v. Grimes
    • United States
    • United States State Supreme Court (New York)
    • July 9, 2021
    ...conviction in open court (see People v Butler, 96 A.D.3d 1367, 1368 [4th Dept 2012], lv denied 20 N.Y.3d 931 [2012]; People v Harris, 233 A.D.2d 959, 959 [4th Dept 1996], lv denied 89 N.Y.2d 1094 [1997]). With respect to the second reason, we conclude that the court was not required to cond......
  • People v. Grimes
    • United States
    • United States State Supreme Court (New York)
    • July 9, 2021
    ...conviction in open court (see People v Butler, 96 A.D.3d 1367, 1368 [4th Dept 2012], lv denied 20 N.Y.3d 931 [2012]; People v Harris, 233 A.D.2d 959, 959 [4th Dept 1996], lv denied 89 N.Y.2d 1094 [1997]). With respect to the second reason, we conclude that the court was not required to cond......
  • People v. Thompson
    • United States
    • New York Supreme Court Appellate Division
    • April 29, 2011
    ...admitting his commission of the prior felony conviction in open court ( see Vega, 49 A.D.3d at 1186, 852 N.Y.S.2d 910; People v. Harris, 233 A.D.2d 959, 649 N.Y.S.2d 584, lv. denied 89 N.Y.2d 1094, 660 N.Y.S.2d 388, 682 N.E.2d 989). We have reviewed defendant's remaining contentions and con......
  • People v. Grimes
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 2021
    ...1367, 1368, 946 N.Y.S.2d 343 [4th Dept. 2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ; People v. Harris , 233 A.D.2d 959, 959, 649 N.Y.S.2d 584 [4th Dept. 1996], lv denied 89 N.Y.2d 1094, 660 N.Y.S.2d 388, 682 N.E.2d 989 [1997] ). With respect to the second reason......
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