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People v. Persaud

Supreme Court of New York, Second Department

August 21, 2013

The People of the State of New York, respondent,
v.
Eric J. Persaud, appellant. Ind. Nos. 1599/09, 721/10

Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky of counsel; Andrew Dykens on the brief), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Queens County (Lasak, J.), both rendered March 16, 2011, convicting him of assault in the first degree under Indictment No. 1599/09 and bribing a witness under Indictment No. 721/10, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v Seaberg, 74 N.Y.2d 1, 10), the defendant failed to preserve for appellate review his contention that his plea of guilty to assault in the first degree was not knowing, voluntary, or intelligent because the Supreme Court did not make a further inquiry when his allocution raised the possibility that the defendant's alleged intoxication at the time of the assault would negate the intent element of the crime of assault in the first degree (see People v Lopez, 71 N.Y.2d 662, 668; People v Antoine, 59 A.D.3d 560). In any event, contrary to the defendant's contention, the court properly conducted a further inquiry to ensure that he possessed the necessary criminal intent to inflict serious physical injury (see Penal Law § 120.10[1]), that there was no possibility that his ability to form such intent was negated by intoxication, and that his plea of guilty to assault in the first degree was knowingly, voluntarily, and intelligently entered (see People v Lopez, 71 N.Y.2d at 667-668; People v Alonzo, 90 A.D.3d 1065; People v Mead, 27 A.D.3d 767, 767-768).

The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Ramos, 7 N.Y.3d 737, 738; People v Lopez, 6 N.Y.3d 248, 255-256; cf. People v Bradshaw, 18 N.Y.3d 257, 264-267).

DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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