People v. Willingham

182 A.D.3d 803

120 N.Y.S.3d 845 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Joseph WILLINGHAM, Appellant.

110280

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 11, 2020

Decided and Entered: April 16, 2020

Kathy Manley, Selkirk, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

As part of a global disposition of two indictments and another pending charge, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree. In accordance with the terms of the plea agreement, defendant was sentenced, as a second felony offender, to a prison term of three years followed by five years of postrelease supervision. He appeals.

Initially, defendant's challenge to the validity of his plea is not preserved for our review absent evidence of an appropriate postallocution motion (see People v. Strack , 177 A.D.3d 1036, 1037, 109 N.Y.S.3d 926 [2019] ; People v. Warren , 176 A.D.3d 1504, 1505, 109 N.Y.S.3d 689 [2019] ). Contrary to his assertion, he did not make any statements during the plea colloquy that negated an element of the charged crime (see Penal Law §§ 110.00, 265.03[3] ). Although it is true that, at the time of the plea, defendant stated that he was unaware that the subject weapon was located in the glove compartment of the vehicle in which he was a passenger, he went on to acknowledge that he was a passenger in that vehicle and to expressly admit guilt under a theory of constructive possession (see Penal Law § 10.00[8] ; People v. Thomas , 165 A.D.3d 1636, 1636, 85 N.Y.S.3d 322 [2018], lvs denied 32 N.Y.3d 1129, 93 N.Y.S. 3d 267, 117 N.E.3d 826 [2018], cert denied ––– U.S. ––––, 140 S. Ct. 257, 205 L.Ed.2d 161 [2019] ; People v. Boyd , 153 A.D.3d 1608, 1608, 61 N.Y.S.3d 431 [2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] ; People v. Worthington , 150 A.D.3d 1399, 1400–1401, 55 N.Y.S.3d 743 [2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 12, 85 N.E.3d 107 [2017] ). Notably, defendant's guilty plea required neither a recitation of every element of the crime nor a factual explanation for each element (see People v. Seeber , 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ; People v. Hollenbeck , 152 A.D.3d 974, 975, 60 N.Y.S.3d 521 [2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ). Moreover, given the applicability of the presumption found in Penal Law § 265.15(3), the allocution cannot be said to cast significant doubt upon defendant's guilt (see People v. Saunders, 2 A.D.3d 905, 905, 767 N.Y.S.2d 699 [2003], lv denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004] ; cf. People v. Medina–Feliz , 151 A.D.3d 603, 603, 57 N.Y.S.3d 475 [2017] ; People v. Clavie , 28 A.D.3d 872, 873, 812 N.Y.S.2d 196 [2006] ). Thus, the narrow exception to the preservation requirement was not triggered and no further inquiry by County Court was required, as defendant suggests (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).

Egan Jr., J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is affirmed.