People v Robert Oltz

People v Oltz 2003 NY Slip Op 18600 [1 AD3d 934] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

The People of the State of New York, Respondent,
v
Robert Oltz, Appellant.

—Appeal from a judgment of Ontario County Court (Doran, J.), entered November 30, 2001, convicting defendant upon his plea of guilty of, inter alia, criminal possession of stolen property in the fourth degree (seven counts).

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of seven counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]) and one count of criminal possession of stolen property in the fifth degree (§ 165.40) in satisfaction of a 39-count indictment. By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the plea allocution is factually insufficient (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Tapscott, 302 AD2d 918, 919 [2003]). The rare case exception to the preservation requirement does not apply where, as here, nothing in "defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" (Lopez, 71 NY2d at 666; see Tapscott, 302 AD2d at 919). Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.