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The People of the State of New York v. Kevin C. Smurphat

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


January 5, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KEVIN C. SMURPHAT, APPELLANT.

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

MEMORANDUM AND ORDER

Calendar Date: November 22, 2011

Before: Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered January 26, 2010, convicting defendant upon his plea of guilty of the crimes of attempted sexual abuse in the first degree and endangering the welfare of a child.

Defendant was charged with subjecting a seven-year-old child to sexual contact. After waiving indictment and agreeing to be prosecuted by a superior court information, defendant pleaded guilty to one count each of attempted sexual abuse in the first degree and endangering the welfare of a child. Defendant also waived his right to appeal, both orally and in writing. Thereafter, defendant was sentenced to six months in jail and 10 years of probation. This appeal ensued.

We affirm. According to defendant, the plea allocution was deficient because, among other things, he stated therein that he did not recall whether he touched the victim or tried to get her off a swing at a playground. Notably, to the extent that this contention addresses the voluntariness of defendant's plea, it survives his waiver of the right to appeal; however, it is nonetheless unpreserved for this Court's review because defendant did not move to withdraw the plea or vacate the judgment of conviction (see People v Martinez, 79 AD3d 1378, 1378 [2010], lv denied 16 NY3d 798 [2011]). Although defendant maintains that the issue is reviewable under the narrow exception to the preservation rule (see People v Lopez, 71 NY2d 662, 666, [1988]; People v Smith, 81 AD3d 1034, 1035 [2011], lv denied 16 NY3d 899 [2011]), we are not persuaded. Contrary to defendant's argument, he did not give contradictory or confusing answers to County Court's questions during the allocution. In fact, defendant specifically indicated that he was not denying the charged crimes, and he made no statements that were inconsistent with his guilt or cast doubt on the elements of those crimes (see People v Goldstein, 12 NY3d 295, 300-301 [2009]; People v Martinez, 79 AD3d at 1378). Accordingly, we find no basis to disturb defendant's convictions.

Defendant's remaining contentions, to the extent not specifically addressed above, have been examined and found to be unpersuasive.

Spain, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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