State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 107103 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

OMAR RICH,

Appellant.

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Calendar Date: April 27, 2016

Before: Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

__________

Salvatore Adamo, Albany, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee

B. Davenport of counsel), for respondent.

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Garry, J.

Appeal from a judgment of the County Court of Warren County

(Hall Jr., J.), rendered July 30, 2014, convicting defendant upon

his plea of guilty of the crimes of criminal possession of a

controlled substance in the third degree and criminal possession

of a controlled substance in the seventh degree.

Defendant pleaded guilty as charged to criminal possession

of a controlled substance in the third degree and criminal

possession of a controlled substance in the seventh degree. 

County Court thereafter sentenced him to eight years in prison,

to be followed by 11⁄2 years of postrelease supervision, with the

sentence to run concurrently to a sentence he was currently

serving. Defendant appeals, and we affirm. 
-2- 107103 

Initially, defendant's contention that his plea was not

knowing, voluntary and intelligent and that he was denied the

effective assistance of counsel were not preserved for our review

by an appropriate postallocution motion (see People v Trombley,

115 AD3d 1114, 1114 [2014], lv denied 23 NY3d 1068 [2014]). As

to the plea, we note that the narrow exception to the

preservation requirement was triggered by defendant's initial

denial during the plea colloquy that he had the intent to sell

the narcotics, thus negating an element of criminal possession of

a controlled substance in the third degree (see Penal Law

§ 220.16 [1]), and triggering a duty on the part of County Court

to conduct further inquiry (see People v Lopez, 71 NY2d 662, 666

[2013]; People v Peterson, 124 AD3d 993, 994 [2015]; People v

Morehouse, 109 AD3d 1022, 1022 [2013]). However, the record

reveals that the court did then conduct sufficient further

inquiry of defendant to confirm that he understood the nature of

the charge and ensure the validity of the plea, and defendant

thereafter admitted to having the requisite intent to sell. 

"[A]s defendant failed to express any dissatisfaction with the

court's remedial action in this regard, defendant has waived any

further challenge to his allocution" (People v English, 100 AD3d

1147, 1148 [2012]; see People v Karolys, 85 AD3d 1213 [2011], lv

denied 17 NY3d 818 [2011]). Accordingly, we find that the plea

was knowing, voluntary and intelligent (see People v Lopez, 71

NY2d at 667-668; People v Howard, 119 AD3d 1090, 1090 [2014], lv

denied 24 NY3d 961 [2014]). 

Finally, as to defendant's claim that the sentence is harsh

and excessive, the record reveals no abuse of discretion or

extraordinary circumstances warranting a reduction of the

sentence (see People v Harold, 123 AD3d 1237, 1238 [2014]; People

v Terry, 122 AD3d 955, 956 [2014]). 

Peters, P.J., Lahtinen, Clark and Mulvey, JJ., concur.
-3- 107103 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court