         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
55
KA 09-02349
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TROY E. SWAN, DEFENDANT-APPELLANT.


CYNTHIA B. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN N. BAUERSFELD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, J.), rendered May 21, 2009. The judgment convicted
defendant, upon a nonjury verdict, of escape in the second degree.

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

     Memorandum: Defendant previously was convicted upon his plea of
guilty of escape in the second degree (Penal Law § 205.10 [1]), based
on allegations that he escaped from a detention facility while working
as a member of a gardening crew. We affirmed the judgment of
conviction (People v Swan, 50 AD3d 1566) but, when the Court of
Appeals thereafter granted defendant’s motion for leave to appeal
(Swan, 11 NY3d 795), the People consented to vacate the judgment
provided, inter alia, that a bench trial would be conducted on
stipulated facts. In our decision in the prior appeal, we had noted
that defendant failed to preserve for our review his contention that
the plea allocution was legally insufficient because defendant stated
therein “that he escaped from jail while gardening on the grounds
outside the jail and thus did not escape from ‘a detention facility’
within the meaning of the statute” (Swan, 50 AD3d at 1566), and we
further noted that defendant’s contention did not fall within the rare
case exception to the preservation doctrine (id. at 1566-1567).
Following the bench trial, County Court found defendant guilty as
charged and, on appeal from the judgment of conviction, defendant now
contends that the evidence is legally insufficient to support the
conviction. We affirm.

     According to the stipulated facts as well as testimony presented
by the People, defendant was working in an area located a few hundred
feet from the detention facility when he fled. The area was on
property owned by Cayuga County, and it was used exclusively by the
detention facility for gardening by inmates. Inmates assigned to the
                                 -2-                            55
                                                         KA 09-02349

gardening crew, including defendant, were escorted by and worked under
the supervision of one or more correction officers. We thus conclude
that, contrary to defendant’s contention, the area was part of the
detention facility within the meaning of Penal Law § 205.10 (1) (see
People v Blank, 87 AD2d 947; cf. People v Sharland, 130 AD2d 819).
Inasmuch as the People submitted uncontested evidence that defendant
escaped from the facility, i.e., its gardening area, on the date
specified in the indictment, the evidence is legally sufficient to
support the conviction (see generally People v Bleakley, 69 NY2d 490,
495).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
