People v Davis

People v Davis 2014 NY Slip Op 08057 Decided on November 20, 2014 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law ? 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2014
No. 232 SSM 22

[*1]The People & c., Respondent,

v

Tyrone Davis, Appellant.

Submitted by Steven A. Feldman, for appellant.

Submitted by Thomas Constant, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

Defendant failed to bring a motion to withdraw his plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10. Nor did his factual [*2]recitation negate the intent element of the crime to which he pleaded guilty. His plea therefore does not qualify for the “rare case” exception to the preservation requirement under People v Lopez (71 NY2d 662, 666 [1988]). Consequently, defendant’s challenge to the factual sufficiency of his allocution “was properly rejected by the Appellate Division and its order upholding the plea and conviction should be affirmed” (People v Toxey , 86 NY2d 725, 726 [1995]).

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On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided November 20, 2014