| People v Rinker |
| 2016 NY Slip Op 05481 [141 AD3d 1177] |
| July 8, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAlva C. Rinker, Jr., Appellant. |
Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Van Buskirk ofcounsel), for defendant-appellant.
Keith A. Slep, District Attorney, Belmont (J. Thomas Fuoco of counsel), forrespondent.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.),rendered May 7, 2014. The judgment convicted defendant, upon his plea of guilty, ofreckless endangerment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of reckless endangerment in the first degree (Penal Law § 120.25).Defendant's challenge to the factual sufficiency of the plea allocution is unpreserved forour review inasmuch as he did not move to withdraw his plea or to vacate the judgmentof conviction (see People vWilliams, 91 AD3d 1299, 1299 [2012]; see generally People v Lopez,71 NY2d 662, 665 [1988]). This case does not fall within the narrow exception to thepreservation requirement because "defendant's recitation of the facts underlying the crimepleaded to" did not "clearly cast[ ] significant doubt upon the defendant's guilt orotherwise call[ ] into question the voluntariness of the plea" (Lopez, 71 NY2d at666). We decline to exercise our power to review defendant's challenge as a matter ofdiscretion in the interest of justice (see People v Carlisle, 120 AD3d 1607, 1607-1608[2014], lv denied 24 NY3d 1082 [2014]; see generally CPL 470.15 [3][c]). Finally, we conclude that the sentence is not unduly harsh or severe.Present—Centra, J.P., Lindley, DeJoseph, NeMoyer and Troutman, JJ.