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The People of the State of New York v. Timothy M. Neuner

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
TIMOTHY M. NEUNER,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered October 7, 2009.

People v Neuner

Appellate Division, Fourth Department

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.

Decided on December 23, 2011

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.

The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated, a class E felony.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated as a class E felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former (i)]). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and he therefore failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665). Contrary to defendant's contention, "[t]he plea allocution does not clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea,' and thus defendant's contention does not fall within the rare case exception to the preservation doctrine" (People v Loper, 38 AD3d 1178, 1179, quoting Lopez, 71 NY2d at 666; see People v Farnsworth, 32 AD3d 1176, lv denied 7 NY3d 867).

Entered: December 23, 2011

Frances E. Cafarell Clerk of the Court

20111223

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