Opinion
No. 1033 KA 05-00228.
September 25, 2007.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered July 2, 2004. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Before: Present — Martoche, P.J., Smith, Peradotto, Green and Pine, JJ.
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 his plea of guilty of murder in the second degree (Penal Law § 125.25). The challenge by defendant to the factual sufficiency of the plea allocution with respect to his intent to commit murder and a possible extreme emotional disturbance defense is encompassed by his valid waiver of the right to appeal ( see People v Winchester, 38 AD3d 1336, 1337; see also People v Carlton, 2 AD3d 1353, lv denied 1 NY3d 625; People v Morgan, 275 AD2d 970, lv denied 96 NY2d 761). In any event, defendant failed to preserve that challenge for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction ( see Winchester, 38 AD3d at 1337). Contrary to the contention of defendant, this case does not fall within the narrow exception to the preservation requirement inasmuch as his recitation of the facts underlying the crimes to which he pleaded guilty does not "clearly cast significant doubt upon the defendant's guilt or otherwise call into question the voluntariness of the plea" ( People v Lopez, 71 NY2d 662, 666).