Opinion
November 19, 1993
Appeal from the Cayuga County Court, Corning, J.
Present — Callahan, J.P., Pine, Balio, Doerr and Boomer, JJ.
Judgment unanimously affirmed. Memorandum: By failing to challenge the constitutionality of CPL 400.10 (2) at County Court, defendant failed to preserve that issue for review (see, People v Iannelli, 69 N.Y.2d 684, 685, cert denied 482 U.S. 914; People v Ferris, 105 A.D.2d 1136). In any event, we conclude that CPL 400.10 (2), which provides for a presentence conference in chambers in the absence of defendant, does not deprive defendant of his constitutional right to be present at a material stage of his trial. Defendant's absence from a presentence conference bears no substantial relation to the fullness of defendant's opportunity to defend against the charge (see, People v Mitchell, 80 N.Y.2d 519, 526-527).
By failing to move to withdraw his guilty plea or to vacate the judgment, defendant failed to preserve for review his challenge to the factual sufficiency of the plea allocution (see, People v Lopez, 71 N.Y.2d 662, 665; People v Garrett, 188 A.D.2d 1055, lv denied 81 N.Y.2d 886). We cannot conclude that defendant's hesitation to recite the underlying facts "casts significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea" (People v Lopez, supra, at 666). Defendant's reluctance to recount details was the product of the character of the crime. When the court recited the factual allegations, defendant admitted having committed the alleged act.