| People v Sheppard |
| 2017 NY Slip Op 03357 [149 AD3d 1569] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v BenjaminSheppard, Appellant. |
Sessler Law PC, Geneseo (Steven D. Sessler of counsel), for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedSeptember 3, 2015. The judgment convicted defendant, upon his plea of guilty, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of assault inthe second degree (Penal Law § 120.05 [7]), defendant contends that his plea wasnot voluntarily, knowingly, or intelligently entered. Defendant failed to preserve his contentionfor our review inasmuch as he did not move to withdraw his plea or to vacate the judgment ofconviction pursuant to CPL article 440 (see People v Hill, 128 AD3d 1479, 1480 [2015], lv denied26 NY3d 930 [2015]). Contrary to defendant's contention, this case does not fall within therare exception to the preservation doctrine inasmuch as nothing in the plea colloquy "castssignificant doubt upon the defendant's guilt or otherwise calls into question the voluntariness ofthe plea" (People v Lopez, 71 NY2d 662, 666 [1988]; see Hill, 128 AD3d at1480). To the extent that defendant's contention is based upon matters outside the record, he mayraise his contention in a motion pursuant to CPL 440.10 (see People v Medina, 132 AD3d 1363, 1364 [2015]).Present—Smith, J.P., Carni, DeJoseph, NeMoyer and Troutman, JJ.