| People v Davis |
| 2014 NY Slip Op 08057 [24 NY3d 1012] |
| November 20, 2014 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, December 31, 2014 |
| The People of the State of New York, Respondent, v Tyrone Davis, Appellant. |
Decided November 20, 2014
People v Davis, 114 AD3d 697, affirmed.
Memorandum. The order of the Appellate Division should be affirmed. Defendant failed to bring a motion to withdraw his plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10. Nor did his factual [*2]recitation negate the intent element of the crime to which he pleaded guilty. His plea therefore does not qualify for the "rare case" exception to the preservation requirement under People v Lopez (71 NY2d 662, 666 [1988]). Consequently, defendant's challenge to the factual sufficiency of his allocution "was properly rejected by the Appellate Division and its order upholding the plea and conviction should be affirmed" (People v Toxey, 86 NY2d 725, 726 [1995]). Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur. On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.