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

929
KA 11-00192
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFERY T. RUSSELL, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered November 30, 2010. The judgment convicted
defendant, upon his plea of guilty, of arson in the second degree and
arson in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of arson in the second degree
(Penal Law § 150.15) and arson in the third degree (§ 150.10 [1]). In
appeal No. 2, defendant appeals from a judgment convicting him upon
his plea of guilty of assault in the second degree (§ 120.05 [4]).

     Defendant contends in each appeal that his respective guilty
pleas were not knowing, voluntary, and intelligent. That contention
is not preserved for our review inasmuch as defendant did not move to
withdraw his guilty pleas or move to vacate the judgments of
conviction on that ground (see People v Wilson, 117 AD3d 1476, 1477;
People v Lewis, 114 AD3d 1310, 1311, lv denied 22 NY3d 1200; People v
Lugg, 108 AD3d 1074, 1075), and the narrow exception to the
preservation rule does not apply here (see People v Lopez, 71 NY2d
662, 666). In any event, we conclude that defendant’s “yes” and “no”
answers during the plea colloquies do not invalidate his guilty pleas
(see Lewis, 114 AD3d at 1311; People v Dunham, 83 AD3d 1423, 1424, lv
denied 17 NY3d 794). Moreover, contrary to defendant’s contention, we
conclude that his answers “confirmed the accuracy of [County Court’s]
recitation of the facts underlying the crime[s], and . . . there is no
requirement that [defendant] personally recite those facts” (People v
Whipple, 37 AD3d 1148, 1148, lv denied 8 NY3d 928; see People v Smith,
35 AD3d 1256, 1256, lv denied 8 NY3d 927). We further conclude that
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                                                         KA 11-00192

the court sufficiently inquired about defendant’s mental health issues
and medications and ensured that he was lucid and understood the
proceedings during both plea colloquies, and his pleas were thus
knowing, voluntary, and intelligent (see People v Lear, 19 AD3d 1002,
1002, lv denied 5 NY3d 807; People v McCann, 289 AD2d 703, 703-704).

     With respect to appeal No. 1, defendant’s contention that the
court erred in failing to hold a presentence conference or summary
hearing (see CPL 400.10 [1], [3]) to correct alleged errors in the
preplea report is likewise unpreserved because, after defendant
pleaded guilty, defense counsel failed to request a hearing after
“reserving” his right to do so in his omnibus motion (see CPL 470.05
[2]). In any event, the court did not abuse its discretion by
proceeding to sentencing without a hearing inasmuch as “[t]he
sentencing transcript establishes that the court did not rely upon the
allegedly improper material included in the [preplea report] in
sentencing defendant” in accordance with the plea agreement (People v
Gibbons, 101 AD3d 1615, 1616; see People v Sumpter, 286 AD2d 450, 452,
lv denied 97 NY2d 658; see generally CPL 400.10 [1]).

     We reject defendant’s contention that defense counsel was
ineffective for failing to request a hearing to challenge the
inclusion of information in the preplea report concerning his
involvement in previous fires and his mental health diagnosis (see CPL
400.10 [1], [3]). Although defendant correctly contends that
erroneous information in a preplea report “create[s] an unjustifiable
risk of future adverse effects to [him] in other contexts” (People v
Freeman, 67 AD3d 1202, 1203), we conclude that defendant has made no
showing that the information in the preplea report was inaccurate (see
People v Rudduck, 85 AD3d 1557, 1557-1558, lv denied 17 NY3d 861).
Moreover, the record demonstrates that the information was gathered
during the investigation to prepare the report and, although it may
not have met the technical rules for admissibility at trial, it was
properly included in the report (see Rudduck, 85 AD3d at 1557-1558;
People v Thomas, 2 AD3d 982, 984, lv denied 1 NY3d 602). Thus, under
the circumstances presented, we conclude that a request for such a
hearing would have had little to no chance of being granted (see
People v Caban, 5 NY3d 143, 152).

     We reject defendant’s further contention that defense counsel was
ineffective for failing to dispute defendant’s “ability to know” that
he had set a fire, or that there were people in the building, in light
of the results of a subsequent test of his blood alcohol level. We
construe defendant’s contention as involving the element of intent set
forth in Penal Law § 150.15 and § 150.10 (1) and/or the element of
knowledge of the presence of a person in the building or reasonable
possibility thereof pursuant to section 150.15 (see generally § 15.25;
People v Brown, 52 AD3d 248, 249, lv denied 11 NY3d 735). The general
rule is that an intoxicated person may form the required intent to
commit a crime, and it is for the jury to decide if the extent of the
intoxication acted to negate the element of intent (see People v
Dorst, 194 AD2d 622, 622, lv denied 82 NY2d 924; People v Rivera, 170
AD2d 625, 626, lv denied 77 NY2d 999). The decision whether to pursue
                                 -3-                              929
                                                            KA 11-00192

an intoxication defense is clearly one of strategy (see Swail v Hunt,
742 F Supp 2d 352, 366). Here, defendant admitted during his plea
allocution that he intentionally damaged a building by starting a
fire, and that he knew that another person was in the building or that
the circumstances were such as to render the presence of such a person
a reasonable possibility. Under the circumstances presented on this
record, we conclude that defendant has failed “to demonstrate the
absence of strategic or other legitimate explanations” for defense
counsel’s alleged failure to pursue an intoxication defense (People v
Rivera, 71 NY2d 705, 709). Thus, defendant failed to meet the
requisite burden in support of his claim of ineffective assistance of
counsel (see id.).

     Finally, the sentence is not unduly harsh or severe.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
