People v. McKnight

• Citation: 2016 N.Y. Slip Op. 07721,40 N.Y.S.3d 797 (Mem),144 A.D.3d 1334
• Parties: The PEOPLE of the State of New York, Respondent, v. Melissa McKNIGHT, Appellant.
• Decision Date: 17 November 2016
• Court: New York Supreme Court Appellate Division

144 A.D.3d 1334

40 N.Y.S.3d 797 (Mem)

2016 N.Y. Slip Op. 07721

The PEOPLE of the State of New York, Respondent,

v.Melissa McKNIGHT, Appellant.

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

Nov. 17, 2016.

Robert N. Gregor, Lake George, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, DEVINE, MULVEY and AARONS, JJ.

MULVEY

, J.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered January 22, 2014, convicting defendant upon her plea of guilty of the crime of robbery in the first degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to robbery in the first degree, admitting that she forcibly stole property from a store clerk at knife point. The plea agreement included an oral waiver of appeal and defendant executed a written waiver of appeal in court during the plea allocution. Consistent with the agreement, defendant was sentenced to five years in prison with 2 ½ years of postrelease supervision, and she now appeals.

We affirm. Defendant's contention that her guilty plea was involuntary, which survives her appeal waiver,¹ is unpreserved for our review inasmuch as the record does not reflect that she made an appropriate postallocution motion, despite an opportunity to do so (see CPL 220.60 [3]

; People v. O'Keefe, 133 A.D.3d 1034, 1035, 19 N.Y.S.3d 196 [2015], lv. denied 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ; see also

People v. Williams, 27 N.Y.3d 212, 214, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ). Moreover, defendant did not make any statements during the plea allocution that negated any element of the crime, otherwise cast doubt upon her guilt or called into question the voluntariness of her plea so as to trigger the narrow exception to the preservation rule (see

People v. Williams, 27 N.Y.3d at 220, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Forest, 141 A.D.3d 967, 969, 36 N.Y.S.3d 296 [2016] ). Rather, the record reflects that, during the plea allocution, defendant indicated that she understood the plea terms and had discussed them with counsel, she then pleaded guilty without hesitation conceding that she was in fact guilty and, under oath, admitted committing the robbery. She gave no indication that she was impaired at the time of the robbery so as to require an inquiry regarding an intoxication defense (see

People v. Beblowski, 127 A.D.3d 1505, 1505, 8 N.Y.S.3d 467 [2015], lv. denied 26 N.Y.3d 926, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015] ; compare

People v. Osgood, 254 A.D.2d 571, 572, 681 N.Y.S.2d 365 [1998] ). Contrary to defendant's argument, her statement at sentencing regarding her history of drug use did not suggest that she had been using drugs at the time of the robbery so as to require a further inquiry (see

People v. Beaty, 22 N.Y.3d 918, 921, 977 N.Y.S.2d 172, 999 N.E.2d 535 [2013] ; compare

People v. DeCenzo, 132 A.D.3d 1160, 1161, 18 N.Y.S.3d 760 [2015], lv. denied 27 N.Y.3d 996, 38 N.Y.S.3d 106, 59 N.E.3d 1218 [2016] ; People v. Maxson, 101 A.D.3d 1384, 1386, 956 N.Y.S.2d 301 [2012] ; People v. Thomson, 279 A.D.2d 644, 644–645, 719 N.Y.S.2d 171 [2001] ). Thus, County Court “had no duty to conduct an inquiry concerning the potential defense of intoxication based upon comments made by defendant during ... the sentencing proceeding” (People v. Phillips, 30 A.D.3d 911, 911, 819 N.Y.S.2d 129 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ).

ORDERED that the judgment is affirmed.

McCARTHY

, J.P., LYNCH, DEVINE and AARONS, JJ., concur.

1 While defendant challenges the waiver of appeal, all issues argued in her brief survive that waiver...