People v. Johnson

• Decision Date: 14 January 1985
• Citation: 484 N.Y.S.2d 85,107 A.D.2d 713
• Parties: The PEOPLE, etc., Respondent, v. James JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 85

484 N.Y.S.2d 85

107 A.D.2d 713

The PEOPLE, etc., Respondent, v. James JOHNSON, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 14, 1985.

David Pomerantz, Garden City, for appellant.

James Johnson, appellant, pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore, Brooklyn, and Karen M. Wigle, Great Neck, of counsel), for respondent.

Before MOLLEN, P.J., and BRACKEN, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 5, 1983, convicting him of sexual abuse in the first degree, upon his plea of guilty, and sentencing him to a term of imprisonment of three and one-half to seven years.

Judgment affirmed.

Defendant did not raise his objections to the sufficiency of his plea allocution to the court of first instance. Therefore, defendant has failed, as a matter of law, to preserve his claim for appellate review (see People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Warren, 47 N.Y.2d 740, 417 N.Y.S.2d 251, 390 N.E.2d 1175).

In any event, we find that defendant's allocution established the requisite elements of sexual abuse in the first degree. Even assuming, arguendo, that the factual recitation was somewhat incomplete, defendant's plea is not deficient as it appears from the record that the court made sufficient inquiry and that defendant knowingly, voluntarily and intelligently pleaded guilty (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Santiago, 100 A.D.2d 857, 473 N.Y.S.2d 1007). As defendant was represented by competent counsel, made no effort to withdraw his plea, and does not protest his innocence, reversal in the interest of justice is not warranted.

We reject defendant's contention that the mandatory sentencing provisions for second-violent-felony offenders of section 70.04 of the Penal Law violate the Eighth Amendment's prohibition against cruel and unusual punishment, either on the face of the statute or as applied to defendant (see Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382; People v. Kepple, 98 A.D.2d 783, 469 N.Y.S.2d 801; People v. Caver, 74 A.D.2d 852, 425 N.Y.S.2d 381; People v. Velasquez, 107 A.D.2d 726, 484 N.Y.S.2d 84). Moreover, the sentence imposed upon defendant was the result of plea negotiations and reflects the serious nature of his crime and his extensive criminal record. Under these...