People v. Ayala — 226 A.D.2d 1127

Majority

p. 1127

The People of the State of New York, Respondent, v Jorge Ayala, Appellant.

[642 NYS2d 828]

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree. By failing to move to withdraw his guilty plea or to vacate the judgment of conviction, defendant has failed to preserve for appellate review his challenge to the

p. 1128

factual sufficiency of the plea allocution (see, People v Lopez, 71 NY2d 662 , 665; People v Lopez, 212 AD2d 1053 , 1054, lv denied 85 NY2d 976 ; People v Hoffman, 210 AD2d 995 , lv denied 84 NY2d 1032 ). This is not one of those "rare case[s]” in which "defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt” (People v Lopez, supra, at 666).

The record establishes that defendant entered his guilty plea knowingly, intelligently and voluntarily (see, People v Fiumefreddo, 82 NY2d 536 , 543). Although the record contains some intemperate and injudicious remarks by County Court, upon our review of the record, we conclude that those remarks do not affect the constitutional validity of defendant’s guilty plea. Defendant acknowledged that he was entering the plea of his own free will without any influence other than what was stated on the record about the preservation of defendant’s right to appeal. (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Attempted Robbery, 1st Degree.) Present—Law-ton, J. P., Wesley, Callahan, Balio and Davis, JJ.

Cases cited

People v. Lopez 71 NY2d 662 N.Y. 1988-06-02 at 665 p. 1128
People v. Fiumefreddo 82 NY2d 536 N.Y. 1993-12-16 at 543 p. 1128