People v. Mandiville

• Decision Date: 26 May 2011
• Citation: People v. Mandiville, 84 A.D.3d 1644, 923 N.Y.S.2d 911, 2011 N.Y. Slip Op. 4318 (N.Y. App. Div. 2011)
• Parties: The PEOPLE of the State of New York, Respondent,v.Randy MANDIVILLE, Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1644

923 N.Y.S.2d 911

2011 N.Y. Slip Op. 04318

The PEOPLE of the State of New York, Respondent,

v.Randy MANDIVILLE, Appellant.

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

May 26, 2011.

OPINION TEXT STARTS HERECliff Gordon, Monticello, for appellant.Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.Before: PETERS, J.P., ROSE, MALONE JR., STEIN AND EGAN JR., JJ.ROSE, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered April 20, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and was sentenced as a prior violent felony offender to the agreed-upon prison term of six years followed by three years of postrelease supervision. Defendant now appeals, contending that his plea was involuntary.

We affirm. Defendant's challenge to the voluntariness of his plea is unpreserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Lopez, 74 A.D.3d 1498, 1498–1499, 902 N.Y.S.2d 230 [2010]; People v. Thompson, 70 A.D.3d 1123, 894 N.Y.S.2d 577 [2010]; People v. Miller, 66 A.D.3d 1242, 1243, 886 N.Y.S.2d 836 [2009], lv. denied 14 N.Y.3d 772, 898 N.Y.S.2d 104, 925 N.E.2d 109 [2010] ). Although defendant takes issue with the manner in which the plea colloquy was conducted, he did not make any statements during his allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea ( see People v. Terpening, 79 A.D.3d 1367, 1367–1368, 912 N.Y.S.2d 776 [2010], lv. denied 16 N.Y.3d 837, 921 N.Y.S.2d 201, 946 N.E.2d 189 [2011]; People v. Miller, 66 A.D.3d at 1243, 886 N.Y.S.2d 836; People v. Corbett, 52 A.D.3d 1023, 1024, 859 N.Y.S.2d 783 [2008] ). Accordingly, the narrow exception to the preservation requirement was not triggered here ( see id.). Moreover, were we to reach this issue, we would find defendant's argument to be lacking in merit.

“[T]rial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which [the] defendant waives a plethora of rights” ( People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990]; see People v. Graham, 77 A.D.3d 1439, 908 N.Y.S.2d 490 [2010], lv. denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010]; People v. Nickell, 49 A.D.3d 1024, 1025, 853 N.Y.S.2d 432 [2008] ), and due process is satisfied where the record clearly reflects that “the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant” ( People v. Louree, 8 N.Y.3d 541, 545, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] [internal quotation marks and citations omitted]; see People v. Rivera, 51 A.D.3d 1267, 1268, 858 N.Y.S.2d 825 [2008] ). Here, defendant was fully advised of the rights that he would be forfeiting in connection with his plea, and the record confirms that defendant's guilty plea was not accepted or entered until after he had been advised of those rights.¹ HENCE, WERE THIS Issue properly before us, we would find defendant's plea to be knowing, intelligent and voluntary ( see People v. Board, 75 A.D.3d 833, 834, 906 N.Y.S.2d 155 [2010]; People v. Aubrey, 73 A.D.3d 1393, 1394, 900 N.Y.S.2d 922 [2010]; People v. Gutierrez, 45 A.D.3d 971, 972, 844 N.Y.S.2d 514 [2007], lv. denied 9...