People v Ross

2008 NY Slip Op 05534

Decided on June 10, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 10, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT A. LIFSON, J.P.
ANITA R. FLORIO
EDWARD D. CARNI
ARIEL E. BELEN, JJ.
2006-04196
(Ind. No. 8121/03)






Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of
counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Amy Appelbaum of
counsel; Sabrina Thanse on the brief), for
respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered November 13, 2005, convicting him of murder in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowing and voluntary is unpreserved for appellate review, since he did not move to withdraw his plea of guilty (see People v Rodriguez,AD3d, 2008 NY Slip Op 04892 [2d Dept 2008]). Moreover, this case does not present a "rare exception" to the preservation requirement, as the defendant's recitation of the facts underlying the crime to which he pleaded guilty did not clearly cast doubt on his guilt or otherwise call into question the voluntariness of his plea (see People v Lopez, 71 NY2d 662).

In any event, the record of the plea proceeding establishes that the plea was knowing and voluntary, and that there was no need for further inquiry concerning the existence of the possibility of the affirmative defenses of extreme emotional disturbance or intoxication (see People v Burgess, 21 AD3d 904; People v Washington, 186 AD2d 834; People v Maida, 147 AD2d 711).
LIFSON, J.P., FLORIO, CARNI and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court