SPANGENBERG, ERIC R., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
606
KA 12-02069
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ERIC R. SPANGENBERG, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered April 30, 2012. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment revoking the sentence of
probation previously imposed upon his conviction of attempted burglary
in the second degree (Penal Law §§ 110.00, 140.25 [2]) and imposing a
determinate term of imprisonment of two years and 18 months of
postrelease supervision, defendant contends that his admission to the
violation of probation was involuntary because the transcript of the
admission colloquy shows that he was confused with respect to what
facts he was admitting. Because defendant did not move on that ground
either to withdraw his admission to the violation of probation or to
vacate the judgment revoking his sentence of probation, he failed to
preserve for our review his challenge to the voluntariness of his
admission (see People v Carncross, 48 AD3d 1187, 1187, lv dismissed 10
NY3d 932, lv denied 11 NY3d 830; People v Barra, 45 AD3d 1393, 1393-
1394, lv denied 10 NY3d 761; People v Fontanez, 19 AD3d 1070, 1070-
1071, lv denied 5 NY3d 788). Moreover, the narrow exception to the
preservation rule does not apply because defendant did not say
anything during the admission colloquy that “cast[] significant doubt
upon [his] guilt or otherwise call[ed] into question the voluntariness
of the [admission]” (People v Lopez, 71 NY2d 662, 666; see People v
Mox, 84 AD3d 1723, 1724, affd 20 NY3d 936). Although defendant
refused to admit that he violated the terms and conditions of his
probation by committing the new crimes with which he was charged, he
admitted without equivocation that he violated such terms and
conditions by failing to pay his surcharge and by consuming alcohol
-2- 606
KA 12-02069
with a friend.
We have examined defendant’s remaining contentions and conclude
that they lack merit.
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court