People v Williams

2010 NY Slip Op 01679 [70 AD3d 1059]

February 23, 2010

Appellate Division, Second Department

As corrected through Wednesday, March 31, 2010

The People of the State of New York,Respondent, v Bernard Williams, Appellant.

—[*1]Gary E. Eisenberg, New City, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered December 20, 2007, convicting him of assault in the first degree, upon hisplea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contention that the plea allocution was factually insufficient to establish thecrime of assault in the first degree is not preserved for appellate review as the defendant failed tomove either to withdraw his plea prior to sentencing or to vacate the judgment pursuant to CPL440.10 (see CPL 470.05 [2]; People v Toxey, 86 NY2d 725 [1995]; People vElcine, 43 AD3d 1176 [2007]; People v Swanton, 27 AD3d 591 [2006]; People vHuchital, 22 AD3d 681 [2005]). The narrow exception to the preservation rule, which ariseswhen the defendant's plea recitation of the facts underlying the crime casts significant doubt onthe defendant's guilt (see People v Lopez, 71 NY2d 662 [1988]), is inapplicable in thiscase. Fisher, J.P., Santucci, Angiolillo, Hall and Lott, JJ., concur.