| People v Spears |
| 2013 NY Slip Op 03256 [106 AD3d 1534] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vKelvin Spears, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered July 31, 2009. The judgment convicted defendant, upon his plea of guilty, ofsexual abuse 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 ofguilty, of sexual abuse in the second degree (Penal Law § 130.60 [2]). We agreewith defendant that Supreme Court's "single reference to [the] right to appeal isinsufficient to establish that the court engage[d] the defendant in an adequate colloquy toensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v Adger, 83 AD3d1590, 1591 [2011], lv denied 17 NY3d 857 [2011] [internal quotation marksomitted]). Contrary to defendant's contention, the court did not abuse its discretion indenying his request for an adjournment at sentencing (see generally People v Aikey,94 AD3d 1485, 1486 [2012], lv denied 19 NY3d 956 [2012]; People v LaCroce, 83 AD3d1388, 1388 [2011], lv denied 17 NY3d 807 [2011]). Additionally, defendantfailed to preserve for our review his contention that the plea colloquy was factuallyinsufficient inasmuch as he failed to move to withdraw his plea of guilty or to vacate thejudgment of conviction on that ground (see People v Lopez, 71 NY2d 662, 665[1988]; People v Streeter,23 AD3d 1113, 1114 [2005], lv denied 6 NY3d 759 [2005]). The narrowexception to the preservation rule does not apply here (see Lopez, 71 NY2d at666), and in any event defendant's contention lacks merit (see id. at 666 n 2; People v Scott, 15 AD3d883, 884 [2005], lv denied 4 NY3d 856 [2005]). Present—Smith, J.P.,Fahey, Carni, Sconiers and Whalen, JJ.