Opinion
KA 02-01744.
November 21, 2003.
Appeal from a judgment of Ontario County Court (Doran, J.), entered November 30, 2001, convicting defendant upon his plea of guilty of, inter alia, criminal possession of stolen property in the fourth degree (seven counts).
It is hereby Ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
John E. Tyo, Shortsville, for Defendant-Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Thomas D. Reh of Counsel), for Plaintiff-Respondent.
Before: Present: Green, J.P., Wisner, Scudder, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of seven counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45) and one count of criminal possession of stolen property in the fifth degree (§ 165.40) in satisfaction of a 39-count indictment. By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the plea allocution is factually insufficient ( see People v. Lopez, 71 N.Y.2d 662, 665; People v. Tapscott, 302 A.D.2d 918, 919). The rare case exception to the preservation requirement does not apply where, as here, nothing in "defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" ( Lopez, 71 N.Y.2d at 666; see Tapscott, 302 A.D.2d at 919).