People v. Sheppard

People v Sheppard (2017 NY Slip Op 07069)

People v Sheppard

2017 NY Slip Op 07069

Decided on October 6, 2017

Appellate Division, Fourth 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 October 6, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.

1123 KA 13-00445

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

EMMANUEL L. SHEPPARD, DEFENDANT-APPELLANT.

CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered February 22, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree (two counts), criminal possession of a controlled substance in the third degree, conspiracy in the second degree and criminally using drug paraphernalia in the second degree (five counts).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of criminal possession of a controlled substance in the first degree (Penal Law

§ 220.21 [1]). With respect to defendant's challenge to County Court's denial of his motion to suppress evidence, we affirm for the reasons stated in People v Richardson (132 AD3d 1313, 1314-1315, lv denied 26 NY3d 1149). By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his further contentions that the plea allocution was factually insufficient (see People v Lopez, 71 NY2d 662, 665-666), and that the plea was not knowingly, voluntarily and intelligently entered (see People v Boyden, 112 AD3d 1372, 1372-1373, lv denied 23 NY3d 960). This case does not fall within the narrow exception to the preservation requirement inasmuch as nothing in the plea colloquy "clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" (Lopez, 71 NY2d at 666).

Entered: October 6, 2017

Mark W. Bennett

Clerk of the Court