PEOPLE v. HURLING (2007)

Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05[7] ), arising from his assault of a fellow inmate.   Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5), and we reject his contention that this case falls within the rare case exception to the preservation doctrine (see id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Indeed, the record establishes that County Court made the proper inquiry to ensure that defendant's conduct satisfied the elements of the crime to which defendant was pleading guilty and that justification was not a viable defense (see People v. Spickerman, 307 A.D.2d 774, 775, 762 N.Y.S.2d 470, lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631;  see generally Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Defendant also failed to preserve for our review his contention that the plea was not knowingly, voluntarily, and intelligently entered (see People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564) and, in any event, that contention is without merit.

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

MEMORANDUM: