Opinion
11-20-2014
The PEOPLE & c., Respondent, v. Tyrone DAVIS, Appellant.
Feldman & Feldman, Uniondale (Steven A. Feldman and Arza Feldman of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead (Thomas Constant of counsel), for respondent.
Feldman & Feldman, Uniondale (Steven A. Feldman and Arza Feldman of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead (Thomas Constant of counsel), for respondent.
Opinion
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 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 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (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 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ).Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT, RIVERA and ABDUS–SALAAM concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11 ), order affirmed, in a memorandum.