People v. Foli

Dec 22, 2016
106637
Versions:145 A.D.3d 1322
42 N.Y.S.3d 871
2016 NY Slip Op 08566

Devine, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered October 10, 2013 in Schenectady County, convicting defendant upon his plea of guilty of the crimes of arson in the second degree and criminal possession of a weapon in the first degree.

In satisfaction of a multi-count indictment, defendant pleaded guilty to one count of arson in the second degree and one count of criminal possession of a weapon in the first degree and waived his right to appeal. He was thereafter sentenced, in accordance with the terms of the plea agreement, to concurrent prison terms of 15 years, to be followed by five years of postrelease supervision. Defendant appeals.

We affirm. Defendant waived his right to appeal and did not preserve his challenge to the voluntariness of his plea by moving to withdraw it (see People v Lopez, 71 NY2d 662, 665-666 [1988]). The narrow exception to the preservation rule is applicable, however, as defendant initially denied during the plea colloquy that there was a reasonable possibility that a third party was present in the subject building at the time the subject fire was started (see Penal Law § 150.15), thereby triggering a duty by Supreme Court to conduct further inquiry (see People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Rich, 140 AD3d 1407, 1407 [2016], lv denied 28 NY3d 936 [2016]; People v Peterson, 124 AD3d 993, 994 [2015]). Supreme Court did conduct that further inquiry and ensured that the elements of arson in the second degree were established which, in turn, confirmed that defendant‘s plea was knowing and voluntary (see People v English, 100 AD3d 1147, 1148 [2012]). Inasmuch as defendant failed to express any dissatisfaction with the court‘s remedial action, he has waived any further challenge to his allocution (see People v Lopez, 71 NY2d at 668; People v Rich, 140 AD3d at 1407; People v English, 100 AD3d at 1148).

Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.

Ordered that the judgment is affirmed.