People v. Holmes

• Decision Date: 15 July 2010
• Citation: 906 N.Y.S.2d 627,75 A.D.3d 834
• Parties: The PEOPLE of the State of New York, Respondent, v. Arthur G. HOLMES, Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 627
75 A.D.3d 834

The PEOPLE of the State of New York, Respondent,
v.
Arthur G. HOLMES, Appellant.

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

July 15, 2010.

906 N.Y.S.2d 627

Richard V. Manning, Parishville, for appellant.

Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, STEIN, GARRY and EGAN JR., JJ.

ROSE, J.P.

75 A.D.3d 834

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 10, 2008, convicting defendant upon his plea of guilty of the crime of reckless endangerment in the first degree.

Defendant waived his right to appeal and pleaded guilty to a superior court information charging him with one count of reckless endangerment in the first degree. The charge stemmed from two incidents

906 N.Y.S.2d 628

where defendant participated in consensual, but unprotected, anal sex without advising the other male participant of the fact that he is infected with the human immunodeficiency virus. In accordance with the plea agreement, County Court sentenced him as a second felony offender to a prison term of 3 to 6 years. Defendant appeals and we affirm.

Defendant argues that the facts of this case, as set out during the plea colloquy, do not constitute the crime of first-degree reckless endangerment. This is, however, a challenge to the factual sufficiency of the plea, which is both precluded by his

75 A.D.3d 835

appeal waiver and unpreserved for our review inasmuch as he failed to move to withdraw his plea or vacate the judgment of conviction ( see People v. Ashley, 71 A.D.3d 1286, 1287, 896 N.Y.S.2d 520 [2010]; People v. Florance, 58 A.D.3d 887, 887, 871 N.Y.S.2d 450 [2009] ). Nor do we view this as that rare case that falls within the narrow exception to the preservation rule articulated in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]. In any event, as defendant manifestly understood the charge and made a knowing, voluntary and intelligent decision to plead guilty, he cannot now be heard to question whether the facts admitted constitute the crime to which he pleaded guilty ( see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009]; People v. Francis, 38 N.Y.2d 150, 154-155, 379 N.Y.S.2d 21, 341 N.E.2d 540 [1975]; People v. Dewer, 243 A.D.2d 984, 985, 663 N.Y.S.2d 425 [1997], lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 406, 693 N.E.2d 753 [1998] ).

Defendant's...