People v. Small

• Decision Date: 15 November 2018
• Docket Number: 109162
• Parties: The PEOPLE of the State of New York, Respondent, v. Naquan D. SMALL, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1237

86 N.Y.S.3d 677

The PEOPLE of the State of New York, Respondent,

v.Naquan D. SMALL, Appellant.

109162

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

Calendar Date: October 19, 2018

Decided and Entered: November 15, 2018

Del Atwell, East Hampton, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered February 9, 2017, convicting defendant upon his plea of guilty of the crime of perjury in the first degree.

In August 2016, defendant was indicted and charged with one count of perjury in the first degree after he provided false testimony during his parole revocation hearing. Following his conviction of certain unrelated drug charges, which were the subject of a separate indictment, defendant agreed to plead guilty to perjury in the first degree without a sentencing commitment from County Court, except insofar as the court indicated that it would be inclined to impose concurrent terms of imprisonment. Defendant thereafter pleaded guilty to perjury in the first degree, and County Court sentenced defendant as a second felony offender to a prison term of 3 to 6 years – said sentence to run concurrently with the prison term imposed upon the drug convictions. Defendant now appeals.

Defendant's challenge to the voluntariness and/or factual sufficiency of his guilty plea is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Muller, 159 A.D.3d 1232, 1232, 73 N.Y.S.3d 279 [2018] ; People v. Bailey, 158 A.D.3d 948, 948, 71 N.Y.S.3d 667 [2018] ; People v. Hankerson, 147 A.D.3d 1153, 1153, 46 N.Y.S.3d 438 [2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ). To the extent that defendant contends that County Court failed to apprise him of his Boykin rights and that such claim is not subject to the preservation rule, he is mistaken. The Court of Appeals has made clear "that the preservation requirement still applies to Boykin claims. Thus, a challenge to the validity of a plea, whether based on the court's failure to mention the Boykin rights or some other alleged defect in the allocution, must be preserved depending on the facts of [each] case" ( People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; see People v. Sommers, 140 A.D.3d 1537, 1538, 33 N.Y.S.3d 789 [2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ).

Here, approximately three weeks elapsed between defendant's plea and sentencing. As defendant had an opportunity to move to withdraw his plea and failed to do so, his challenge to the adequacy of County Court's allocution is not preserved (see e.g. People v. Jackson, 159 A.D.3d 1276, 1276, 73 N.Y.S.3d 676 [2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ; People v. Evans, 159 A.D.3d 1226, 1227, 72 N.Y.S.3d 650 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ). "Additionally, defendant did not make any statements during his allocution that cast doubt upon his guilt or negated an element of the charged crime, and nothing on the face of the colloquy calls into question either the voluntariness of defendant's plea or his capacity to enter into it" ( People v. Lamb, 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2018] [citations omitted] ). Hence, the narrow exception to the preservation requirement was not triggered (see id. at 1396, 80 N.Y.S.3d 520 ). In any event, the record reflects that County Court indeed advised defendant of his Boykin rights, i.e., the privilege against self-incrimination, the right to a jury trial and the right to confront witnesses (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ), and that defendant, in turn, knowingly and voluntarily waived...