People v Padilla
2022 NY Slip Op 01636 [203 AD3d 1564]
March 11, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 4, 2022


[*1]
 The People of the State of New York, Respondent,
v
Marino Padilla, Appellant.

Law Office of Veronica Reed, Schenectady (Veronica Reed of counsel), for defendant-appellant.

Jon E. Budelmann, District Attorney, Auburn (Erich D. Grome of counsel), for respondent.

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered September 10, 2019. The judgment convicted defendant, upon a 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 plea of guilty, of assault in the second degree (Penal Law § 120.05 [7]). Defendant's challenges to the voluntariness of his guilty plea are unpreserved, and the narrow exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]) does not apply in this case (see People v Padilla, 151 AD3d 1700, 1700-1701 [4th Dept 2017], lv denied 31 NY3d 1016 [2018]; see generally People v Peque, 22 NY3d 168, 182 [2013], cert denied 574 US 840 [2014]). We note in that regard that, contrary to defendant's assertion, "serious physical injury" is not an element of the crime to which he pleaded guilty (see § 120.05 [7]). Moreover, defendant's "assertion that his allocution failed to affirmatively establish each element of the crime [to which he pleaded guilty] 'is not a recognized ground for vacating a guilty plea' " (People v Rathburn, 178 AD3d 1421, 1422 [4th Dept 2019], lv denied 35 NY3d 944 [2020]; see People v Goldstein, 12 NY3d 295, 300-301 [2009]; People v Gulbin, 165 AD3d 1611, 1612 [4th Dept 2018], lv denied 32 NY3d 1172 [2019]; People v Madden, 148 AD3d 1576, 1578 [4th Dept 2017], lv denied 29 NY3d 1034 [2017]). Present—Smith, J.P., Lindley, NeMoyer, Curran and Bannister, JJ.