People v. Spangenberg

• Decision Date: 20 June 2014
• Citation: 2014 N.Y. Slip Op. 04624,987 N.Y.S.2d 782,118 A.D.3d 1444
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric R. SPANGENBERG, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1444
987 N.Y.S.2d 782
2014 N.Y. Slip Op. 04624

The PEOPLE of the State of New York, Respondent,
v.
Eric R. SPANGENBERG, Defendant–Appellant.

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

June 20, 2014.

D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.

Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and WHALEN, JJ.

MEMORANDUM:

On appeal from a judgment revoking the sentence of probation previously imposed upon his conviction of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ) and imposing a determinate term of imprisonment of two years and 18 months of postrelease supervision, defendant contends that his admission to the violation of probation was involuntary because the transcript of the admission colloquy shows that he was confused with respect to what facts he was admitting. Because defendant did not move on that ground either to withdraw his admission to the violation of probation

[987 N.Y.S.2d 783]

or to vacate the judgment revoking his sentence of probation, he failed to preserve for our review his challenge to the voluntariness of his admission ( see People v. Carncross, 48 A.D.3d 1187, 1187, 852 N.Y.S.2d 506,lv. dismissed10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405,lv. denied11 N.Y.3d 830, 868 N.Y.S.2d 605, 897 N.E.2d 1089;People v. Barra, 45 A.D.3d 1393, 1393–1394, 844 N.Y.S.2d 795,lv. denied10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258;People v. Fontanez, 19 A.D.3d 1070, 1070–1071, 796 N.Y.S.2d 280,lv. denied5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669). Moreover, the narrow exception to the preservation rule does not apply because defendant did not say anything during the admission colloquy that “cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the [admission]” ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;see People v. Mox, 84 A.D.3d 1723, 1724, 922 N.Y.S.2d 686,affd.20 N.Y.3d 936, 958 N.Y.S.2d 670, 982 N.E.2d 590). Although defendant refused to admit that he violated the terms and conditions of his probation by committing the new crimes with which he was charged, he admitted without equivocation that he violated such terms and conditions by failing to pay his surcharge and by consuming alcohol with a friend.

We have examined defendant's remaining contentions and conclude that...