People v Davis

2014 NY Slip Op 08057 [24 NY3d 1012]

November 20, 2014

Court of Appeals

As corrected through Wednesday, December 31, 2014

[*1]

The People of the State of New York, Respondent, v Tyrone Davis, Appellant.

Decided November 20, 2014

People v Davis, 114 AD3d 697, affirmed.

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to bring a motion to withdraw his plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10. Nor did his factual [*2]recitation negate the intent element of the crime to which he pleaded guilty. His plea therefore does not qualify for the "rare case" exception to the preservation requirement under People v Lopez (71 NY2d 662, 666 [1988]). Consequently, defendant's challenge to the factual sufficiency of his allocution "was properly rejected by the Appellate Division and its order upholding the plea and conviction should be affirmed" (People v Toxey, 86 NY2d 725, 726 [1995]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.