People v. Hart

• Citation: 114 A.D.3d 1273,980 N.Y.S.2d 863,2014 N.Y. Slip Op. 01066
• Parties: The PEOPLE of the State of New York, Respondent, v. Paris HART, Defendant–Appellant.
• Decision Date: 14 February 2014
• Court: New York Supreme Court Appellate Division

114 A.D.3d 1273
980 N.Y.S.2d 863
2014 N.Y. Slip Op. 01066

The PEOPLE of the State of New York, Respondent,
v.
Paris HART, Defendant–Appellant.

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

Feb. 14, 2014.

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered July 13, 2010. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of murder in the second degree (Penal Law § 125.25[1] ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea allocution was factually insufficient because County Court did not obtain a waiver of two possible affirmative defenses, i.e., mental disease or defect ( 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. denied 4 N.Y.3d 891, 798 N.Y.S.2d 736, 831 N.E.2d 981), and extreme emotional disturbance (§ 125.25[1][a] ). Nothing in the plea allocution raised the possibility that

[980 N.Y.S.2d 864]

such defenses are applicable in this case ( cf. People v. Mox, 20 N.Y.3d 936, 938, 958 N.Y.S.2d 670, 982 N.E.2d 590;People v. Lopez, 71 N.Y.2d 662, 666–668, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Costanza, 244 A.D.2d 988, 989, 665 N.Y.S.2d 487), and defendant's contention therefore does not fall within the narrow exception to the preservation rule ( see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

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

SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ., concur.