The People, etc., respondent, v. Carl Johnson, appellant. (2010)

Submitted-April 21, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered January 11, 2007, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's valid waiver of his right to appeal precludes review of his challenge to the factual adequacy of his plea allocution (see People v. Chavez, 71 AD3d 781;  People v. Rufa, 57 AD3d 697).

To the extent that the defendant contends that his plea was not knowing or voluntary, his claim is unpreserved for appellate review since he failed to move to withdraw his plea (see CPL 470.05[2];  People v. Toxey, 86 N.Y.2d 725;  People v. Broadwater, 69 AD3d 643;  People v. Elcine, 43 AD3d 1176).   The narrow exception to the preservation rule, which arises when the defendant's plea recitation of the facts underlying the crime casts significant doubt on the defendant's guilt (see People v. Lopez, 71 N.Y.2d 662), is inapplicable in this case.   In any event, any alleged defects in the factual allocution do not constitute grounds for setting aside the plea since “there is no suggestion that the plea of guilty was improvident or baseless” (People v. Guerrero, 307 A.D.2d 935, 936 [internal quotation marks omitted];  see People v. Winbush, 199 A.D.2d 447, 448).

RIVERA, J.P., FLORIO, MILLER, CHAMBERS and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court