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People v. Bailey

Supreme Court of New York, Third Department

February 15, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
LARRY A. BAILEY, Appellant.

          Calendar Date: January 16, 2018

          Michael P. Graven, Owego, for appellant.

          Stephen K. Cornwell Jr., District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

          Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.

          MEMORANDUM AND ORDER

          McCarthy, J.P.

         Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered February 11, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

         Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with criminal possession of a weapon in the third degree. The charge stemmed from an incident wherein defendant was "jumped" by a group of individuals who stole his bicycle and backpack. Defendant admittedly refused to cooperate with law enforcement officials who responded to the scene and, after initially going home, defendant returned to the scene to attempt to retrieve some of his property; upon doing so, defendant stabbed one of his assailants with a knife. After being apprised of the rights that he would be forfeiting by accepting the People's plea offer, defendant pleaded guilty to criminal possession of a weapon in the third degree — in full satisfaction of the superior court information, two pending misdemeanor charges and any other potential charges arising from this incident — in exchange for the contemplated prison sentence of 3 to 6 years. County Court thereafter sentenced defendant as a second felony offender to the agreed-upon prison term, prompting this appeal.

         We affirm. Defendant's challenges to the factual sufficiency and the voluntariness of his plea - the latter of which is premised upon County Court's failure to inquire as to a potential intoxication or justification defense - are unpreserved for our review as the record does not indicate that defendant made an appropriate postallocution motion (see People v Leflore, 154 A.D.3d 1164, 1165 [2017]; People v Woods, 147 A.D.3d 1156, 1156-1157 [2017], lv denied 29 N.Y.3d 1089');">29 N.Y.3d 1089 [2017]; People v Hankerson, 147 A.D.3d 1153, 1153 [2017], lv denied 29 N.Y.3d 998');">29 N.Y.3d 998 [2017]; People v Shipps, 136 A.D.3d 1113, 1113 [2016]). Contrary to defendant's assertion, he did not make any statements during the course of the plea colloquy that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea; hence, the narrow exception to the preservation requirement was not triggered (see People v Fay, 154 A.D.3d 1178, 1181 [2017]; People v Millard, 147 A.D.3d 1155, 1156 [2017], lv denied 29 N.Y.3d 999');">29 N.Y.3d 999 [2017]). Notably, nothing on the face of the plea colloquy suggested that a viable defense to the charged crime might be implicated (see People v Wright, 154 A.D.3d 1015, 1016 [2017], lv denied 30 N.Y.3d 1065');">30 N.Y.3d 1065 [2017]; People v Hopper, 153 A.D.3d 1045, 1046-1047 [2017], lv denied 30 N.Y.3d 1061');">30 N.Y.3d 1061 [2017]). Defendant's claim that he was intoxicated at the time of the incident and could not recall what had transpired was articulated for the first time during his presentence interview with the Probation Department, and County Court was under no obligation to conduct any further inquiry in response to this belated, postplea assertion (see People v Hopper, 153 A.D.3d at 1047; People v Brimmage, 143 A.D.3d 624, 625 [2016], lv denied 28 N.Y.3d 1143');">28 N.Y.3d 1143 [2017]; People v Pastor, 136 A.D.3d 493, 493 [2016], affd 28 N.Y.3d 1089');">28 N.Y.3d 1089 [2016]; People v Terrell, 134 A.D.3d 651, 652 [2015], lv denied 27 N.Y.3d 1075');">27 N.Y.3d 1075 [2016]; People v Bryan, 129 A.D.3d 524, 524 [2015], lv denied 26 N.Y.3d 965');">26 N.Y.3d 965 [2015]). In any event, defendant's argument on this point is belied by his detailed plea allocution, wherein he recited the specific events leading up to and culminating in the underlying crime. We find no extraordinary circumstances or abuse of discretion that would warrant a modification of the sentence in the interest of justice (see People v Barnes, 150 A.D.3d 1338, 1339 [2017]; People v Leone, 105 A.D.3d 1249, 1250 [2013], lv denied 21 N.Y.3d 1017');">21 N.Y.3d 1017 [2013]).

          Lynch, Devine, Clark and ...


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