People v. Acosta

• Citation: 19 A.D.3d 1041,2005 NY Slip Op 04756,796 N.Y.S.2d 289
• Decision Date: 10 June 2005
• Docket Number: KA 04-00828.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH A. ACOSTA, Appellant.
• Court: New York Supreme Court — Appellate Division

19 A.D.3d 1041

796 N.Y.S.2d 289

2005 NY Slip Op 04756

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH A. ACOSTA, Appellant.

KA 04-00828.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

June 10, 2005.

Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered February 20, 2004. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree, aggravated criminal contempt and criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

Defendant appeals from a judgment convicting him upon a guilty plea of assault in the second degree (Penal Law § 120.05 [1]), aggravated criminal contempt (§ 215.52), and criminal possession of a weapon in the third degree (§ 265.02 [1]). Defendant's challenge to the factual sufficiency of the plea allocution is not preserved for our review (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Furman, 294 AD2d 848 [2002], lv denied 98 NY2d 696 [2002]), and this case does not fall within the rare case exception to the preservation doctrine (see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995]; Lopez, 71 NY2d at 666). Because defendant did not obtain leave to appeal with respect to the denial of his CPL 440.10 motion, his contentions concerning the denial of that motion are not properly before us (see CPL 450.15 [1]; 460.15; People v Brown, 277 AD2d 987 [2000], lv denied 96 NY2d 781 [2001]). Finally, the sentence is not unduly harsh or severe.

Present — Green, J.P., Hurlbutt, Scudder, Pine and Lawton, JJ.