People v. Engert

—Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]). The record supports County Court’s determination that defendant’s oral statements to the police were spontaneous and not the result of police interrogation or its functional equivalent (see, People v Rivers, 56 NY2d 476 , 479-480, rearg denied, 57 NY2d 775 ; People v Lipscomb, 214 AD2d 970 , lv denied 86 NY2d 797 , cert denied 516 US 1078 ). The record also supports the court’s determination that defendant, despite his intellectual limitations, knowingly, intelligently and voluntarily waived his Miranda rights (see, People v Williams, 62 NY2d 285 , 287; People v Ras, 244 AD2d 938 , lv denied 91 NY2d 929 ). Defendant has failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see, People v Lopez, 71 NY2d 662 , 665; People v Williams, 258 AD2d 942 , lv denied 93 NY2d 880 ; People v Francis, 254 AD2d 779 , lv denied 92 NY2d 1031 ; People v Stabley, 233 AD2d 958 , lv denied 89 NY2d 930 ). The agreed-upon sentence, which is less than the maximum permissible, is neither unduly harsh nor severe. (Appeal from Judgment of Ontario County Court, Harvey, J. — Sexual Abuse, 1st Degree.) Present — Green, J. P., Hayes, Pigott, Jr., Callahan and Balio, JJ.