People v. Johnson, 614 KA 12-01040

• Decision Date: 08 May 2015
• Docket Number: 614 KA 12-01040
• Citation: 7 N.Y.S.3d 925 (Mem),128 A.D.3d 1539,2015 N.Y. Slip Op. 04019
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeremy M. JOHNSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1539

7 N.Y.S.3d 925 (Mem)

2015 N.Y. Slip Op. 04019

The PEOPLE of the State of New York, Respondent

v.Jeremy M. JOHNSON, Defendant–Appellant.

614 KA 12-01040

Supreme Court, Appellate Division, Fourth Department, New York.

May 8, 2015.

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.

OpinionMEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the second degree (Penal Law § 130.30[1] ). Defendant failed to preserve for our review his contention that his plea of guilty was not knowing, voluntary or intelligent because he did not “move to withdraw the plea on the same grounds [now] alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10 ” (People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617, cert. denied ––– U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 ; see People v. Robinson, 64 A.D.3d 1248, 1248, 881 N.Y.S.2d 356, lv. denied 13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101 ; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Further, we conclude that this is not one of those “rare case[s]” in which, during the plea allocution, “defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon ... defendant's guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

SMITH, J.P., CARNI, LINDLEY, VALENTINO, and WHALEN, JJ., concur.