People v. Johnson

• Decision Date: 11 February 2015
• Citation: 125 A.D.3d 1052,2015 N.Y. Slip Op. 01197,3 N.Y.S.3d 184
• Parties: The PEOPLE of the State of New York, Respondent, v. William P. JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1052

3 N.Y.S.3d 184

2015 N.Y. Slip Op. 01197

The PEOPLE of the State of New York, Respondent,

v.William P. JOHNSON, Appellant.

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

Feb. 11, 2015

John A. Cirando, Syracuse, for appellant.

Mary E. Rain, District Attorney, Canton (Patricia C. Campbell, Syracuse, of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, McCARTHY and LYNCH, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 15, 2013, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2006, defendant entered a guilty plea to rape in the third degree, admitting that he subjected a 15–year–old girl to sexual intercourse when he was 34 years old, and was sentenced to 180 days in jail with a concurrent 10–year term of probation with conditions. Subsequently, defendant was charged with violating the condition of probation that he not violate any laws based upon two arrests for harassment in August 2011 and January 2013 and a third harassment incident in November 2012. Defendant thereafter pleaded guilty to violating probation related to the 2013 incident, and County Court revoked his probation and resentenced him, as agreed, to 1 to 4 years in prison. Defendant now appeals.

We affirm. Defendant's contention that his admission to violating probation was not knowing, voluntary and intelligent was not raised in a postallocution motion to withdraw his guilty plea and, thus, it is not preserved for our review ( see People v. McGregor, 119 A.D.3d 1235, 1236, 989 N.Y.S.2d 404 [2014]; People v. Cogswell, 94 A.D.3d 1236, 1237, 942 N.Y.S.2d 275 [2012], lv. denied 19 N.Y.3d 958, 950 N.Y.S.2d 110, 973 N.E.2d 208 [2012] ). Moreover, the record reflects that defendant understood and accepted the plea terms and was advised of the rights that he was forgoing, waived a violation hearing indicating that he had sufficient time to discuss the matter with counsel, and thereafter voluntarily admitted to violating his probation ( see People v. Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013] ). Even assuming that one of defendant's responses to County Court's questions during the plea colloquy cast doubt on his guilt of engaging in harassing behavior so as to implicate the exception to the preservation requirement, as he now argues, we find that the court's further inquiry before accepting defendant's admission ensured that his plea was knowing, voluntary and...