           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

253
KA 13-00197
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

THOMAS J. DEMARCO, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (William
H. Mountain, III, A.J.), rendered November 26, 2012. The judgment
convicted defendant, upon his plea of guilty, of assault in the third
degree and endangering the welfare of a child.

     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, inter alia, assault in the third degree (Penal Law
§ 120.00 [2]), defendant contends that his plea was not knowingly,
voluntarily or intelligently entered because the factual allocution
negated the mental state of recklessness, which is an essential
element of the crime of assault in the third degree. Although that
contention survives defendant’s valid waiver of the right to appeal
(see People v Theall, 109 AD3d 1107, 1107-1108), defendant failed to
preserve it for our review inasmuch as he did not move to withdraw the
plea or to vacate the judgment of conviction (see id. at 1108; People
v Rossborough, 101 AD3d 1775, 1776; People v Russell, 55 AD3d 1314,
1314-1315, lv denied 11 NY3d 930). In any event, even assuming,
arguendo, that defendant’s initial statements during the plea colloquy
negated the requisite mens rea and that defendant’s contention is
properly before us (see People v Lopez, 71 NY2d 662, 666), we conclude
that his subsequent statements removed any doubt with respect thereto,
and defendant did not make any further protestations of innocence (see
Theall, 109 AD3d at 1108; People v Gardner, 101 AD3d 1634, 1634-1635;
People v Trinidad, 23 AD3d 1060, 1061, lv denied 6 NY3d 760).




Entered:   May 9, 2014                             Frances E. Cafarell
                                                   Clerk of the Court
