People v. Nash

38 A.D.3d 684, 832 N.Y.S.2d 593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2007
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered August 15, 2005, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s waiver of his right to appeal was valid (see People v Ciatto, 290 AD2d 560 [2002]), and precludes review of his challenge of the factual sufficiency of his plea allocution (see People v Mydosh, 27 AD3d 580 [2006]; People v Curras, 1 AD3d 445, 446 [2003]; People v Green, 200 AD2d 687 [1994]). In any event, the defendant’s challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant failed to move prior to the imposition of sentence to withdraw his plea (see People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Carden, 27 AD3d 573, 573 [2006]). Moreover, the “rare case” exception to the preservation requirement as enunciated in People v Lopez (71 NY2d 662, 666 [1988]), does not apply 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 Rizzo, 38 AD3d 571 [2007]).

The defendant’s remaining contentions are without merit. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.