The People, etc., respondent, v. Miguel Rojas, also known as Miguel A. Rojas, appellant. (2010)

Submitted-June 15, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered June 6, 2008, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant failed to move to withdraw his plea prior to sentencing (see CPL 470.05[2];  People v. Toxey, 86 N.Y.2d 725;  People v. Johnson, 73 AD3d 951;  People v. Marcinak, 69 AD3d 654, lv denied 14 NY3d 842;  People v. Colston, 68 AD3d 1130).   Moreover, the plea proceedings do not “clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea” and, thus, this case is not a “rare case” presenting an exception to the preservation requirement (People v. Lopez, 71 N.Y.2d 662, 666).

The defendant's challenge to the restitution component of his sentence is unpreserved for appellate review (see CPL 470.05[2];  People v. Bruno, 73 AD3d 941;  People v. Harris, 72 AD3d 1110), and we decline to reach it in the interest of justice (see CPL 470.15).

The defendant's sentence was part of a negotiated plea agreement.   Accordingly, he has no basis to complain that the sentence was excessive (see People v. Vere, 44 AD3d 690, 692;  People v. Fiori, 24 AD3d 687;  People v. Mejia, 6 AD3d 630).   In any event, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83).

MASTRO, J.P., FLORIO, BELEN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court