| People v Terry |
| 2014 NY Slip Op 01471 [115 AD3d 683] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Trevor Terry, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Barbara Kornblau of counsel;Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(O'Brien, J.), rendered June 13, 2012, convicting him of possessing a sexual performanceby a child, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record was insufficient to insure that the defendant grasped the distinctionbetween the trial rights automatically forfeited upon a plea of guilty and the right toappeal, especially since there is no written waiver of the right to appeal in the record (see People v Moyett, 7 NY3d892 [2006]; People vLopez, 6 NY3d 248, 256 [2006]; People v Ayala, 112 AD3d 646 [2013]; cf. People v Ramos, 7 NY3d737, 738 [2006]). Accordingly, the defendant's purported waiver of his right toappeal was invalid, and does not preclude review of his challenge to the factualsufficiency of his plea allocution.
However, the defendant's challenge to the factual sufficiency of his plea allocution isunpreserved for appellate review since the defendant failed to move to withdraw his plea(see People v Lopez, 71 NY2d 662, 665 [1988]; People v Pellegrino, 60NY2d 636, 637 [1983]; Peoplev Colston, 68 AD3d 1130 [2009]). Moreover, the exception to the preservationrequirement, as enunciated in People v Lopez (71 NY2d at 666), does not applyhere because the defendant's allocution did not clearly cast significant doubt on his guilt,negate an essential element of the crime, or call into question the voluntariness of theplea (see People v Young,88 AD3d 918 [2011]). In any event, the facts admitted by the defendant during hisplea allocution were sufficient to support his plea of guilty (see People v Goldstein, 12NY3d 295, 301 [2009];People v Seeber, 4 NY3d 780, 781 [2005]; People v Fooks, 21 NY2d338, 350 [1967], cert denied sub nom. Robinson v New York, 393 US 1067[1969]). Balkin, J.P., Lott, Roman and Miller, JJ., concur.