PEOPLE v. KHAMMONIVANG (2009)

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of one count of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3]; § 1193[1][c] [former (i) ] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of use of a child in a sexual performance (Penal Law § 263.05) and possessing a sexual performance by a child (§ 263.16). Addressing first the judgment in appeal No. 2, we conclude that defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution by failing to move to withdraw the plea or to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Moorer, 63 A.D.3d 1590, 879 N.Y.S.2d 760). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation requirement (see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160, rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225; Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Lacey, 49 A.D.3d 1259, 852 N.Y.S.2d 895, lv. denied 10 N.Y.3d 936, 862 N.Y.S.2d 342, 892 N.E.2d 408).

In view of our determination affirming the judgment in appeal No. 2, we reject defendant's contention that the judgment in appeal No. 1 must be reversed on the ground that he pleaded guilty in appeal No. 1 based on the promise that the sentence in appeal No. 1 would run concurrently with the sentence in appeal No. 2 (cf. People v. Fuggazzatto, 62 N.Y.2d 862, 477 N.Y.S.2d 619, 466 N.E.2d 159).

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

MEMORANDUM: