THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TIMOTHY NEUNER DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated as a class E felony (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (i) ] ).   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and he therefore 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).   Contrary to defendant's contention, “[t]he plea allocution does not ‘clearly cast [ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea,’ and thus defendant's contention does not fall within the rare case exception to the preservation doctrine” (People v. Loper, 38 AD3d 1178, 1179, quoting Lopez, 71 N.Y.2d at 666;  see People v. Farnsworth, 32 AD3d 1176, lv denied 7 NY3d 867).

Frances E. Cafarell

Clerk of the Court