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People v. Colston

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 22, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
CHARLES J. COLSTON, APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN & LEONARD B. AUSTIN, JJ.

(Ind. No. 1718/06)

DECISION & ORDER

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 NY2d 662, 665; People v Pellegrino, 60 NY2d 636, 637; People v Fiori, 24 AD3d 687). Moreover, the "rare case" exception to the preservation requirement, as enunciated in People v Lopez (71 NY2d at 666), 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 AD3d 684; People v Rizzo, 38 AD3d 571). In any event, the facts admitted in the allocution were sufficient to support the defendant's plea of guilty (see People v Seeber, 4 NY3d 780, 781; People v Sanabria, 52 AD3d 743, 744).

SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.

20091222

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