| People v Mitchell |
| 2008 NY Slip Op 00805 [48 AD3d 1081] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v George B.Mitchell, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),entered February 24, 2004. The judgment convicted defendant, upon his plea of guilty, ofattempted burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]).Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thusfailed to preserve for our review his challenge to the factual sufficiency of the plea allocution(see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839[1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Brow, 255 AD2d904, 905 [1998]). Even assuming, arguendo, that this is one of those rare cases in which"defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubtupon the defendant's guilt or otherwise calls into question the voluntariness of the plea," weconclude on the record before us that Supreme Court met its "duty to inquire further to ensurethat defendant's guilty plea [was] knowing and voluntary" (Lopez, 71 NY2d at 666;see People v Brow, 255 AD2d at 905). Present—Scudder, P.J., Martoche,Peradotto, Pine and Gorski, JJ.