PEOPLE v. MORALES

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Edwin MORALES, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[1] ).   The challenge by defendant to the factual sufficiency of the plea allocution with respect to his intent to commit murder and a possible extreme emotional disturbance defense is encompassed by his valid waiver of the right to appeal (see People v. Winchester, 38 A.D.3d 1336, 1337, 831 N.Y.S.2d 798;  see also People v. Carlton, 2 A.D.3d 1353, 770 N.Y.S.2d 502, lv. denied 1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283;  People v. Morgan, 275 A.D.2d 970, 715 N.Y.S.2d 190, lv. denied 96 N.Y.2d 761, 725 N.Y.S.2d 288, 748 N.E.2d 1084).   In any event, defendant failed to preserve that challenge for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see Winchester, 38 A.D.3d at 1337, 831 N.Y.S.2d 798).   Contrary to the contention of defendant, this case does not fall within the narrow exception to the preservation requirement inasmuch as his recitation of the facts underlying the crimes to which he pleaded guilty does not “clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

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

MEMORANDUM: