Opinion
KA 01-00896
October 1, 2002.
Appeal from a judgment of Supreme Court, Herkimer County (Kirk, J.), entered February 3, 1998, convicting defendant upon his plea of guilty of, inter alia, arson in the second degree.
JOHN A. HERBOWY, ROME, FOR DEFENDANT-APPELLANT.
JOHN H. CRANDALL, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of arson in the second degree (Penal Law § 150.15) and other crimes. Defendant's challenge to the factual sufficiency of the plea allocution is not preserved for our review.
Contrary to the contention of defendant, his recitation of the facts did not cast doubt upon whether he knew that a nonparticipant in the arson was in the building when defendant started the fire, or that the circumstances were "such as to render the presence of such a person therein a reasonable possibility" (§ 150.15[b]). Nor did defendant raise the possibility of an intoxication defense during the plea allocution ( cf. People v. Sabari, 280 A.D.2d 942). Thus, "defendant's utterances overall in this case did not engender `significant doubt' on the voluntariness of his plea" and his plea allocution "does not qualify for the narrow, `rare case' exception to the preservation doctrine described in People v. Lopez ( 71 N.Y.2d 662, 666)" ( People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839).