Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Benjamin SHEPPARD, Defendant–Appellant.
Sessler Law PC, Geneseo (Steven D. Sessler of Counsel), for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Sessler Law PC, Geneseo (Steven D. Sessler of Counsel), for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a plea of guilty of assault in the second degree (Penal Law § 120.05[7] ), defendant contends that his plea was not voluntarily, knowingly, or intelligently entered. Defendant failed to preserve his contention for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction pursuant to CPL article 440 (see People v. Hill, 128 A.D.3d 1479, 1480, 8 N.Y.S.3d 805, lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation doctrine inasmuch as nothing in the plea colloquy "casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see Hill, 128 A.D.3d at 1480, 8 N.Y.S.3d 805 ). To the extent that defendant's contention is based upon matters outside the record, he may raise his contention in a motion pursuant to CPL 440.10 (see People v. Medina, 132 A.D.3d 1363, 1364, 17 N.Y.S.3d 258 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.