People v Francis

2008 NY Slip Op 06088

Decided on July 3, 2008

Appellate Division, Fourth Department

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

Decided on July 3, 2008


PRESENT: HURLBUTT, J.P., SMITH, LUNN, GREEN, AND GORSKI, JJ.
948 KA 07-00816




Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered January 30, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree, criminal possession of stolen property in the fifth degree (two counts) and criminal mischief in the fourth degree.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (NEAL P. MC CLELLAND OF COUNSEL), FOR RESPONDENT.


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, inter alia, burglary in the third degree (Penal Law § 140.20). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665; People v Jeanty, 41 AD3d 1223, lv denied 9 NY3d 923; People v Moore, 39 AD3d 1199, lv denied 9 NY3d 867). 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 doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" (Lopez, 71 NY2d at 666), we conclude on the record before us that County Court met its "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" (id.; seePeople v Brow, 255 AD2d 904).
Entered: July 3, 2008
JoAnn M. Wahl
Clerk of the Court