Majority
p. 1130The People of the State of New York, Respondent, v Charles J. Colston, Appellant. [892 NYS2d 145]
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
p. 1131
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.
Cases cited
- People v. Lopez 71 NY2d 662 at 665 p. 1130
- People v. Pellegrino 60 NY2d 636 at 637 p. 1130
- People v. Rizzo 38 AD3d 571 p. 1131
- People v. Seeber 4 NY3d 780 at 781 p. 1131
- People v. Sanabria 52 AD3d 743 at 744 p. 1131