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

748
KA 10-00389
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MAURICE HENDRICKS, ALSO KNOWN AS MAURICE
SAVAGE, ALSO KNOWN AS “RICO,”
DEFENDANT-APPELLANT.


DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered November 19, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the first
degree and criminal possession of a weapon in the second degree.

     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 attempted assault in the first degree (Penal Law §§
110.00, 120.10 [1]) and criminal possession of a weapon in the second
degree (§ 265.03 [3]), defendant contends that County Court erred in
accepting his plea without conducting a further inquiry into a
possible justification defense. By failing to move to withdraw the
plea or to vacate the judgment of conviction, however, defendant
failed to preserve that contention for our review (see People v Davis,
37 AD3d 1179, lv denied 8 NY3d 983), and “[t]his is not one of those
rare cases ‘where the defendant’s recitation of the facts underlying
the crime pleaded to clearly casts significant doubt upon the
defendant’s guilt or otherwise calls into question the voluntariness
of the plea’ to obviate the preservation requirement” (id. at 1180-
1181, quoting People v Lopez, 71 NY2d 662, 666). Although defendant
initially stated during the plea colloquy that he shot the victim
because the victim had threatened defendant’s life, defendant
explained upon further inquiry that he was operating a motor vehicle
when he observed the victim walking down the street, whereupon
defendant exited his car and chased the victim before shooting him in
the foot while the victim was running away. Those further statements
                                 -2-                           748
                                                         KA 10-00389

by defendant negated any possibility of a viable justification
defense.




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
