PEOPLE v. COLSTON

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The PEOPLE, etc., respondent, v. Charles J. COLSTON, appellant.

Decided: December 22, 2009

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ. Stefani Goldin, Melville, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons of counsel; Jessica N. Reich on the brief), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered June 12, 2007, convicting him of criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree, robbery in the first degree, and burglary in the first degree (two counts), 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 or to vacate the judgment of conviction (see CPL 220.60[3]; 440.10; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Fiori, 24 A.D.3d 687, 808 N.Y.S.2d 382). Moreover, the “rare case” exception to the preservation requirement, as enunciated in People v. Lopez (71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5), does not apply here because the defendant's allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Nash, 38 A.D.3d 684, 832 N.Y.S.2d 593; People v. Rizzo, 38 A.D.3d 571, 832 N.Y.S.2d 586). In any event, the facts admitted in the allocution were sufficient to support the defendant's plea of guilty (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Sanabria, 52 A.D.3d 743, 744, 861 N.Y.S.2d 359).

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