PEOPLE v. WILLEY (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the second degree (Penal Law § 160.10 [2][a] ).   By failing to move to withdraw his plea or to vacate the judgment of conviction, 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;  People v. Oltz, 1 A.D.3d 934, 935, 767 N.Y.S.2d 753, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289).   Further, the exception to the preservation requirement does not apply herein (see generally Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   That exception “applies where a defendant's factual recitation casts significant doubt on his guilt by negating an essential element of the crime ․, ‘not where[, as here,] the sufficiency of the articulation of the element is challenged’ ” (People v. Ward, 282 A.D.2d 871, 872, 725 N.Y.S.2d 418, quoting People v. Vonderchek, 245 A.D.2d 979, 980, 667 N.Y.S.2d 129, lv. denied 91 N.Y.2d 945, 671 N.Y.S.2d 725, 694 N.E.2d 894).   To the extent that the further contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097), we conclude that it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Defense counsel's failure to file an omnibus motion does not, by itself, constitute ineffective assistance of counsel (see generally People v. McQueen, 307 A.D.2d 765, 765-766, 762 N.Y.S.2d 562, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629).   Finally, the bargained-for sentence is not unduly harsh or severe.

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

MEMORANDUM: