People v. Brew

203 A.D.2d 955, 611 N.Y.S.2d 391, 1994 N.Y. App. Div. LEXIS 4970

Opinion

—Judgment unanimously affirmed. Memorandum: County Court properly denied the application by defendant to withdraw his guilty plea. Defendant failed to submit an affidavit in support of his conclusory assertions of innocence and coercion. During the plea colloquy, defendant stated that he had not been forced to plead guilty, that he was entering the plea voluntarily and that he had confidence in his attorney’s ability and judgment. Moreover, the statement made by defendant during the presentence investigation that he "almost had sex” with the victim does not negate an element of the crime of attempted rape in the second degree. Under those circumstances, neither further inquiry by the court nor an evidentiary hearing was required (see, People v Price, 140 AD2d 927; People v Stubbs, 110 AD2d 725; People v Bangert, 107 AD2d 752).

Defendant failed to preserve for review his challenge to the sufficiency of his factual allocution (see, CPL 470.05 [2]). A sufficient allocution appears in the transcript of the plea colloquy, and defendant failed to raise the issue on his post allocution motion (see, People v Lopez, 71 NY2d 662, 665-666; People v Pellegrino, 60 NY2d 636, 637). (Appeal from Judgment of Genesee County Court, Morton, J. — Attempted Rape, 2nd Degree.) Present — Pine, J. P., Balio, Lawton, Davis and Boehm, JJ.