| People v Trapp |
| 2005 NYSlipOp 00802 |
| February 4, 2005 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David P. Trapp, Appellant. |
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Appeal from a judgment of the Cayuga County Court (Peter E. Corning, J.), rendered October 26, 2001. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
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 robbery in the first degree (Penal Law § 160.15 [3]). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea allocution was factually insufficient because County Court failed to obtain a waiver of the defense of mental disease or defect. Nothing in the plea allocution raised the possibility of that defense (cf. People v Lopez, 71 NY2d 662, 666-668 [1988]; People v Costanza, 244 AD2d 988, 989 [1997]) and, indeed, defendant specifically denied that he had any mental disability that would affect his ability to enter a voluntary plea of guilty. We therefore conclude that defendant's contention does not fall within the rare case exception to the preservation rule (see Lopez, 71 NY2d at 666). The sentence is not unduly harsh or severe. Present—Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.