People v. McFadden , 149 A.D.3d 599 ( 2017 )

People v McFadden (2017 NY Slip Op 03074)

People v McFadden

2017 NY Slip Op 03074

Decided on April 20, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 20, 2017
Acosta, J.P., Mazzarelli, Manzanet-Daniels, Gische, Kahn, JJ.

3796 694/15

[*1]The People of the State of New York, Respondent,

v

Lloyd McFadden, Defendant-Appellant.

Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Shari R. Michels, J.), rendered May 28, 2015, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously affirmed.

Defendant's claim that his plea was coerced by a remark made by the court during the plea proceeding is concededly unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the plea was knowingly, intelligently and voluntarily made. The remark at issue was essentially an accurate, noncoercive statement that if defendant did not go through with the contemplated plea to sexual abuse under a superior court information, the People were free to obtain an indictment charging a crime carrying a potential sentence of 25 years (see e.g. People v Tabares, 52 AD3d 437 [1st Dept 2008], lv denied 11 NY3d 835 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 20, 2017

CLERK