PEOPLE v. MOORE (2007)

 On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law former § 265.03[2] ), defendant challenges the factual sufficiency of the plea allocution based on his failure to admit that he intended to use the weapon unlawfully against another person.   Defendant failed to move to withdraw his plea on that ground and thus failed to preserve his challenge for our review (see People v. Escalante, 16 A.D.3d 984, 984-985, 792 N.Y.S.2d 253, lv. denied 5 N.Y.3d 788, 793, 801 N.Y.S.2d 809, 814, 835 N.E.2d 669, 674).   This case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). “ ‘[N]othing that defendant said or failed to say in [his] allocution negated any element of the offense to which [he] pleaded ․ or otherwise called into question [his] admitted guilt or the voluntariness of his plea’ ” (People v. Clark, 26 A.D.3d 743, 744, 810 N.Y.S.2d 264, lv. denied 7 N.Y.3d 754, 819 N.Y.S.2d 879, 853 N.E.2d 250, quoting People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797).   Defendant further contends that County Court failed to conduct a sufficient inquiry into the basis for his complaints against defense counsel.   Defendant did not request new counsel, but instead sought to withdraw his plea on the ground that defense counsel was ineffective and had coerced him into accepting the plea.   We conclude that the court conducted a sufficient inquiry before denying defendant's request to withdraw the plea (see People v. Biller, 270 A.D.2d 883, 705 N.Y.S.2d 921;  see generally People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;  People v. Farley, 34 A.D.3d 1229, 824 N.Y.S.2d 517).   Finally, the challenge by defendant to the severity of the sentence is encompassed by his waiver of the right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: