| People v Morgan |
| 2007 NY Slip Op 10293 [46 AD3d 1418] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Steve A.Morgan, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Leili A. Moghari, Thomas D. Reh, ofcounsel), for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered January24, 2006. The judgment convicted defendant, upon his plea of guilty, of burglary in the firstdegree (two counts), menacing in the second degree (two counts) and assault in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, two counts of burglary in the first degree (Penal Law § 140.30 [2], [4]), defendantcontends that his plea allocution was factually insufficient because he negated the essentialelement of intent with respect to the burglary counts. Defendant concedes that he failed topreserve that contention for our review but contends that this case falls within the rare exceptionto the preservation rule set forth in People v Lopez (71 NY2d 662, 666 [1988]). Wereject that contention. "Although defendant's initial factual allocution may have negated anessential element of the crime, this case does not fall within the exception to the preservation rulebecause [County Court] conducted the requisite further inquiry and defendant did not thereafterraise any further objections or move to withdraw his plea or to vacate the judgment ofconviction" (People v Jennings, 8AD3d 1067, 1068 [2004], lv denied 3 NY3d 676 [2004]; see Lopez, 71NY2d at 666-668; People vThomas, 17 AD3d 1123 [2005], lv denied 5 NY3d 770 [2005]). Finally, thebargained-for sentence is not unduly harsh or severe. Present—Gorski, J.P., Martoche,Lunn, Fahey and Pine, JJ.