People v. Stendardo

• Decision Date: 01 February 2019
• Docket Number: 1424,KA 14–01179
• Citation: 169 A.D.3d 1447,92 N.Y.S.3d 815
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony C. STENDARDO, III, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1447
92 N.Y.S.3d 815

The PEOPLE of the State of New York, Respondent,
v.
Anthony C. STENDARDO, III, Defendant–Appellant.

1424
KA 14–01179

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

Entered: February 1, 2019

BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.

92 N.Y.S.3d 817

MEMORANDUM AND ORDER

169 A.D.3d 1447

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of one count of possessing a sexual performance by a child ( Penal Law § 263.16 ) in satisfaction of an indictment charging him with 40 counts of that crime. Pursuant to the terms of the plea agreement, County Court sentenced defendant to a 10–year term of probation. Defendant contends that, as a result of brain damage that he allegedly sustained, his plea was not knowingly and voluntarily entered. Because defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground, his contention is not preserved for our review (see People v. Brown, 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv. denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ; People v. Davis, 45 A.D.3d 1357, 1357–1358, 844 N.Y.S.2d 739 [4th Dept. 2007], lv denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879 [2007] ).

Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]"inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea" ( People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 [4th Dept. 2011] ). In any event, we note that the court conducted further inquiry to ensure that the...