Opinion
2012-07-5
The PEOPLE, etc., respondent, v. Jose MARTINEZ, appellant.
Gary E. Eisenberg, New City, N.Y., for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.
Gary E. Eisenberg, New City, N.Y., for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered March 18, 2010, convicting him of burglary in the second degree, criminal trespass in the second degree, and resisting arrest, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that his plea allocution to the crime of resisting arrest was factually insufficient ( see CPL 220.60[3]; 470.05[2]; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). Furthermore, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime of resisting arrest, or call into question the voluntariness of his plea ( People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 [internal quotation marks omitted]; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Young, 88 A.D.3d 918, 918, 931 N.Y.S.2d 235 [internal quotation marks omitted] ). In any event, the facts admitted by the defendant during his plea allocution were sufficient to support his plea of guilty to the crime of resisting arrest ( see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Lopez, 71 N.Y.2d at 666 n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5).
The defendant's contention that his conviction of criminal trespass in the second degree should be vacated on the ground that it is a lesser included offense of burglary in the second degree is foreclosed by his plea of guilty ( see People v. Bliss, 245 A.D.2d 459, 666 N.Y.S.2d 461;People v. Webb–Payne, 234 A.D.2d 403, 404, 652 N.Y.S.2d 47;People v. Freeman, 117 A.D.2d 677, 678, 498 N.Y.S.2d 416;see also People v. Walton, 41 N.Y.2d 880, 880–881, 393 N.Y.S.2d 979, 362 N.E.2d 610).