PEOPLE v. LOPEZ (2007)

 Defendant appeals from a judgment convicting her upon her plea of guilty of murder in the second degree (Penal Law § 125.25 [4] ).   By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review her challenge to the factual sufficiency of the plea allocution (see People v. Gibbs, 31 A.D.3d 1186, 817 N.Y.S.2d 546, lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143).   This case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5.   Contrary to defendant's contention, “ [t]he proof that the People intended to offer at trial, placed on the record by the prosecutor, contained strong evidence of defendant's guilt” (People v. Peralta, 231 A.D.2d 958, 648 N.Y.S.2d 70, lv. denied 90 N.Y.2d 909, 663 N.Y.S.2d 521, 686 N.E.2d 233).   Also contrary to the contention of defendant, Supreme Court properly refused to suppress her statements to the police.   The record of the suppression hearing supports the court's conclusion that defendant was not in custody when she made those statements to the investigating officers at her home, the hospital and the police department.   A reasonable person in defendant's position, innocent of any crime, would not have believed that he or she was in custody when the statements were made (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  People v. Andrews, 13 A.D.3d 1143, 1144-1145, 787 N.Y.S.2d 750).

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

MEMORANDUM: