People v. Colston

68 A.D.3d 1130, 892 N.Y.2d 145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2009
• Status: Published

Opinion

The defendant’s challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant failed to move to withdraw his plea or to vacate the judgment of conviction (see CEL 220.60 [3]; 440.10; People v Lopez, 71 NY2d 662, 665 [1988]; People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Fiori, 24 AD3d 687 [2005]). Moreover, the “rare case” exception to the preservation requirement, as enunciated in People v Lopez (71 NY2d at 666), does not apply here because the defendant’s allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the.plea (see People v Nash, 38 AD3d 684 [2007]; People v Rizzo, 38 AD3d 571 [2007]). In any event, the facts admitted in the allocution were sufficient to support the defendant’s plea of guilty (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Sanabria, 52 AD3d 743, 744 [2008]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.