

People v Simmons (2017 NY Slip Op 00261)





People v Simmons


2017 NY Slip Op 00261


Decided on January 17, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 17, 2017

Richter, J.P., Manzanet-Daniels, Feinman, Kapnick, Gesmer, JJ.


2413 491/12

[*1]The People of the State of New York, Respondent,
vJeremy Simmons, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 9, 2013, convicting defendant, upon his plea of guilty, of two counts of attempted murder in the second degree, and sentencing him to concurrent terms of 20 years, unanimously affirmed.
Defendant's challenge to the voluntariness of his plea does not come within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662, 665-666 [1988]), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we reject it on the merits. Defendant's plea allocution establishes the voluntariness of the plea and contains nothing that casts any doubt on defendant's guilt (see People v Toxey, 86 NY2d 725 [1995]). Since defendant neither said anything inconsistent with his guilt during the allocution nor moved to withdraw the plea, the court had no obligation to conduct a sua sponte inquiry into defendant's postplea exculpatory statements, reflected in the presentence report (see e.g. People v Brimmage,  AD3d , 2016 NY Slip Op 06986 [2016]; People v Praileau, 110 AD3d 415 [1st Dept 2013], lv denied 22 NY3d 1202 [2014]; People v Pantoja, 281 AD2d 245 [1st Dept 2001], lv denied 96 NY2d 905 [2001]),
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 17, 2017
CLERK


