People v. Simmons

• Decision Date: 17 January 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeremy SIMMONS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 560

44 N.Y.S.3d 738 (Mem)

2017 N.Y. Slip Op. 00261

The PEOPLE of the State of New York, Respondent,

v.Jeremy SIMMONS, Defendant–Appellant.

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

Jan. 17, 2017.

Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 9, 2013, convicting defendant, upon his plea of guilty, of two counts of attempted murder in the second degree, and sentencing him to concurrent terms of 20 years, unanimously affirmed.

Defendant's challenge to the voluntariness of his plea does not come within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we reject it on the merits. Defendant's plea allocution establishes the voluntariness of the plea and contains nothing that casts any doubt on defendant's guilt (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ). Since defendant neither said anything inconsistent with his guilt during the allocution nor moved to withdraw the plea, the court had no obligation to conduct a sua sponte inquiry into defendant's postplea exculpatory statements, reflected in the presentence report (see e.g. People v. Brimmage, 143 A.D.3d 624, 40 N.Y.S.3d 73 [2016] ; People v. Praileau, 110 A.D.3d 415, 971 N.Y.S.2d 533 [1st Dept.2013], lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ; People v. Pantoja, 281 A.D.2d 245, 721 N.Y.S.2d 535 [1st Dept.2001], lv. denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91 [2001] ),

We perceive no basis for reducing the sentence.

RICHTER, J.P., MANZANET–DANIELS, FEINMAN, KAPNICK, GESMER, JJ., concur.