People v. Engert
693 N.Y.S.2d 468
N.Y. App. Div.
1999
Check Treatment

—Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]). The record supports County Court’s determination that defendant’s oral statements to the police were spontaneous and not the result of police interrogation or its functional equivalent (see, People v Rivers, 56 NY2d 476, 479-480, rearg denied, 57 NY2d 775; People v Lipscomb, 214 AD2d 970, lv denied 86 NY2d 797, cert denied 516 US 1078). The record also supports the court’s determination that defendant, despite his intellectual limitations, knowingly, intelligently and voluntarily waived his Miranda rights (see, People v Williams, 62 NY2d 285, 287; People v Ras, 244 AD2d 938, lv denied 91 NY2d 929). Defendant has failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see, People v Lopez, 71 NY2d 662, 665; People v Williams, 258 AD2d 942, lv denied 93 NY2d 880; People v Francis, 254 AD2d 779, lv denied 92 NY2d 1031; People v Stabley, 233 AD2d 958, lv denied 89 NY2d 930). The agreed-upon sentence, which is less than the maximum permissible, is neither unduly harsh nor severe. (Appeal from Judgment of Ontario County Court, Harvey, J. — Sexual Abuse, 1st Degree.) Present — Green, J. P., Hayes, Pigott, Jr., Callahan and Balio, JJ.