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People v. Elliott

Supreme Court of New York, Fourth Department

June 7, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SHAUN K. ELLIOTT, DEFENDANT-APPELLANT.

Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.), rendered July 9, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.

LEONARD, CURLEY & WALSH, PLLC, ROME (MICHAEL W. ARTHUR OF COUNSEL), FOR DEFENDANT-APPELLANT.

LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant contends that County Court erred in accepting his Alford plea because the record lacked the requisite "strong evidence of actual guilt" to support his plea. That contention survives his waiver of the right to appeal to the extent that it implicates the voluntariness of the plea (see People v Dash, 74 A.D.3d 1859, 1860, lv denied 15 N.Y.3d 892; People v Dille, 21 A.D.3d 1298, 1298, lv denied 5 N.Y.3d 882). By failing to move to withdraw the plea or vacate the judgment of conviction on the ground that the record lacked the requisite "strong evidence of actual guilt, " however, defendant failed to preserve his contention for our review (see Dille, 21 A.D.3d at 1298; People v Ebert, 15 A.D.3d 781, 782), and this case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 N.Y.2d 662, 666; Dille, 21 A.D.3d at 1298). In any event, we conclude that "the record establishes that defendant's Alford plea was the product of a voluntary and rational choice, and the record... contains strong evidence of actual guilt" (Dash, 74 A.D.3d at 1860 [internal quotation marks omitted]).


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