People v. Vilbrin

• Decision Date: 14 May 2020
• Docket Number: 109893
• Citation: 123 N.Y.S.3d 297,183 A.D.3d 1012
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan VILBRIN, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1012

123 N.Y.S.3d 297

The PEOPLE of the State of New York, Respondent,

v.Jonathan VILBRIN, Appellant.

109893

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

Calendar Date: March 27, 2020

Decided and Entered: May 14, 2020

Brian M. Quinn, Albany, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered September 15, 2017, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.

Based on a March 21, 2017 incident in which defendant stabbed the victim with a knife, defendant pleaded guilty, in full satisfaction of a six-count indictment, to attempted murder in the second degree and waived the right to appeal. In accord with the plea agreement, County Court sentenced defendant to 17 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant's challenge to the plea as involuntary and his ineffective assistance of counsel claim, to the extent that it implicates the voluntariness of the plea, survive his unchallenged appeal waiver but are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. White, 172 A.D.3d 1822, 1823–1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ; People v. Peryea, 169 A.D.3d 1120, 1120, 93 N.Y.S.3d 456 [2019], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 242, 124 N.E.3d 731 [2019] ). Nor are we persuaded by defendant's contention that his reference at sentencing to the use of Zoloft

cast doubt upon his guilt or called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; compare People v. Chin, 160 A.D.3d 1038, 1039, 73 N.Y.S.3d 685 [2018] ). During the plea colloquy, defendant advised County Court that he had been treated for depression since February 2017, had been hospitalized for a week and was taking a prescribed medication. Defendant then responded affirmatively when the court asked whether the medication helped and allowed him to think clearly. Defendant further confirmed that he was able to ask questions of his attorney and to understand the responses. When asked whether he had any concerns "in that regard," counsel responded "none whatsoever." Defendant did not specify that he was using Zoloft

.

At sentencing, defendant initially complained that he was being sentenced "for 17 years for an inch and a half hand laceration

and a black...