People v. Mitchell

48 A.D.3d 1081, 849 N.Y.S.2d 813

Opinion

Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered February 24, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted burglary 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 attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Brow, 255 AD2d 904, 905 [1998]). Even assuming, arguendo, that this is one of those rare cases in which “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” we conclude on the record before us that Supreme Court met its “duty to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary” (Lopez, 71 NY2d at 666; see People v Brow, 255 AD2d at 905). Present—Scudder, EJ., Martoche, Feradotto, Fine and Gorski, JJ.