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People v. Harrison

State of New York Supreme Court, Appellate Division Third Judicial Department


October 1, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KEITH T. HARRISON II, APPELLANT.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: September 11, 2009

Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 21, 2007, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

Defendant was charged in a five-count indictment with murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, assault in the second degree and endangering the welfare of a minor. The charges stemmed from an incident where defendant's one-month-old son died allegedly as the result of defendant attempting to stop the infant from crying by first covering his mouth and then causing the child's head to violently strike the headboard of defendant's bed. Pursuant to a plea agreement, defendant pleaded guilty to manslaughter in the first degree in full satisfaction of the indictment and was sentenced to the bargained-for term of 15 years in prison followed by five years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's challenge to the factual sufficiency of his plea allocution was not preserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Florance, 58 AD3d 887, 887 [2009]; People v Sanabria, 43 AD3d 1228, 1229 [2007], lv denied 9 NY3d 993 [2007]). Moreover, contrary to defendant's contention, he did not make any statements during the plea allocution that cast doubt about his guilt or negated an essential element of the crime so as to trigger the narrow exception to the preservation requirement (see People v Johnson, 54 AD3d 1133, 1133 [2008]; People v Sinclair, 48 AD3d 974, 975 [2008]).

Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur.

ORDERED that the judgment is affirmed.

20091001

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