| People v Morales |
| 2007 NY Slip Op 07188 [43 AD3d 1384] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdwinMorales, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered July2, 2004. The judgment convicted defendant, upon his plea of guilty, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofmurder in the second degree (Penal Law § 125.25 [1]). The challenge by defendant to thefactual sufficiency of the plea allocution with respect to his intent to commit murder and apossible extreme emotional disturbance defense is encompassed by his valid waiver of the rightto appeal (see People v Winchester,38 AD3d 1336, 1337 [2007]; seealso People v Carlton, 2 AD3d 1353 [2003], lv denied 1 NY3d 625 [2004];People v Morgan, 275 AD2d 970 [2000], lv denied 96 NY2d 761 [2001]). In anyevent, defendant failed to preserve that challenge for our review inasmuch as he failed to move towithdraw the plea or to vacate the judgment of conviction (see Winchester, 38 AD3d at1337). Contrary to the contention of defendant, this case does not fall within the narrowexception to the preservation requirement inasmuch as his recitation of the facts underlying thecrimes to which he pleaded guilty does not "clearly cast[ ] significant doubt upon the defendant'sguilt or otherwise call[ ] into question the voluntariness of the plea" (People v Lopez, 71NY2d 662, 666 [1988]). Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.