FOWLER, STEVEN L., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
114
KA 14-00041
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
STEVEN L. FOWLER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered November 19, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted assault in the first degree (Penal Law §§
110.00, 120.10 [1]), defendant contends that County Court erred in
refusing to grant his pro se motion to withdraw his plea, which
defendant asserts was involuntary because his attorney failed to
advise him of the possible defense of intoxication. We reject that
contention. Defendant was represented by counsel and was not entitled
to hybrid representation (see People v Rodriguez, 95 NY2d 497, 501-
502; People v Alsaifullah, 96 AD3d 1103, 1103, lv denied 19 NY3d 944),
and we therefore conclude that the court did not abuse its discretion
in refusing to entertain the pro se motion. We note in any event that
defendant admitted during the plea colloquy that he intended to cause
serious physical injury to the victim when he stabbed him with a
knife, and, thus, his claim that he was too intoxicated to form the
requisite intent is belied by the plea transcript (see generally
People v Santana, 110 AD2d 789, 789, lv denied 67 NY2d 656).
Defendant failed to preserve for our review his contention that
the court erred in sentencing him as a second violent felony offender
inasmuch as he failed to controvert the allegations in the predicate
felony statement (see People v Smith, 73 NY2d 961, 962-963; People v
Lawrence, 23 AD3d 1039, 1039-1040, lv denied 6 NY3d 835), and the
narrow exception to the preservation rule does not apply (see People v
Nieves, 2 NY3d 310, 315-316; cf. People v Samms, 95 NY2d 52, 55-57).
-2- 114
KA 14-00041
We decline to exercise our power to review that contention as a matter
of discretion in the interest of justice (see CPL 470.15 [3] [c];
People v Sullivan, 4 AD3d 223, 224, lv denied 2 NY3d 765).
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court