PEOPLE v. KEMP (2001)

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered September 19, 2000, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

 Although defendant's waiver of the right to appeal does not in and of itself preclude appellate review of the voluntariness of his plea (see, People v. Conyers, 227 A.D.2d 793, 642 N.Y.S.2d 450, lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615), his failure to move either to withdraw the plea or to vacate the judgment of conviction generally precludes review of 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).   By failing to make the appropriate motion, defendant deprived County Court of the opportunity to address the alleged deficiency and, if necessary, take corrective action (see, People v. Tumminia, 272 A.D.2d 634, 714 N.Y.S.2d 697).   There is a narrow exception to the preservation rule where a defendant's factual recitation casts significant doubt on his guilt by negating an essential element of the crime (see, People v. Lopez, supra, at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Inasmuch as defendant made no statements inconsistent with his guilt during the colloquy wherein County Court asked him questions concerning his conduct which constituted the commission of the crime, the exception is not applicable in this case (see, People v. Russo, 191 A.D.2d 737, 594 N.Y.S.2d 423).   In any event, a plea allocution is generally sufficient where, as here, a defendant's affirmative responses to County Court's questions established the elements of the crimes charged and there is no indication in the record that the voluntary plea was baseless or improvident (see, People v. Empey, 242 A.D.2d 839, 662 N.Y.S.2d 152, lv. denied 91 N.Y.2d 834, 667 N.Y.S.2d 687, 690 N.E.2d 496).   The absence of any claim of facts which make the plea unjust is fatal to defendant's argument, for a plea should never be undone “because of some omission in inquiry at the time of a plea without a showing of prejudice” (People v. Nixon, 21 N.Y.2d 338, 355-356, 287 N.Y.S.2d 659, 234 N.E.2d 687).   Defendant's remaining arguments have been considered and rejected as without merit.

ORDERED that the judgment is affirmed.

LAHTINEN, J.

MERCURE, J.P., PETERS, CARPINELLO and MUGGLIN, JJ., concur.