GORDON, JERMAINE J., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
856
KA 10-02075
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JERMAINE J. GORDON, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.
DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (LYNN SCHAFFER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered August 30, 2010. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of assault in the second degree (Penal Law §
120.05 [1]). Defendant’s contention “that his plea was not knowing,
intelligent and voluntary ‘because he did not recite the underlying
facts of the crime but simply replied to County Court’s questions with
monosyllabic responses is actually a challenge to the factual
sufficiency of the plea allocution’ ” (People v Simcoe, 74 AD3d 1858,
1859, lv denied 15 NY3d 778; see People v Brown, 66 AD3d 1385, 1385,
lv denied 14 NY3d 839). “[D]efendant failed to preserve that
challenge for our review by moving to withdraw the plea or . . . to
vacate the judgment of conviction” (People v Jamison, 71 AD3d 1435,
1436, lv denied 14 NY3d 888; see People v Lopez, 71 NY2d 662, 665).
In any event, “[d]efendant’s monosyllabic responses to [the c]ourt’s
questions did not render the plea invalid. Moreover, there is no
requirement that a defendant personally recite the facts underlying
his or her crime[] during the plea colloquy, and, here, [t]he record
establishes that defendant confirmed the accuracy of [the court’s]
recitation of the facts underlying the crime” (People v Bullock, 78
AD3d 1697, 1698, lv denied 16 NY3d 742 [internal quotation marks and
citations omitted]; see Jamison, 71 AD3d at 1436; People v Bailey, 49
AD3d 1258, 1259, lv denied 10 NY3d 932).
-2- 856
KA 10-02075
Finally, the sentence is not unduly harsh or severe.
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court