People v Johnson

People v Johnson 2015 NY Slip Op 04019 Decided on May 8, 2015 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 May 8, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
614 KA 12-01040

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

JEREMY M. JOHNSON, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Joseph G. Nesser, A.J.), rendered March 13, 2012. The judgment convicted defendant, upon his plea of guilty, of rape in the second degree.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.

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 rape in the second degree (Penal Law § 130.30 [1]). Defendant failed to preserve for our review his contention that his plea of guilty was not knowing, voluntary or intelligent because he did not "move to withdraw the plea on the same grounds [now] alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" (People v Peque, 22 NY3d 168, 182, cert denied ___ US ___, 135 S Ct 90; see People v Robinson, 64 AD3d 1248, 1248, lv denied 13 NY3d 862; see generally People v Lopez, 71 NY2d 662, 665). Further, we conclude that this is not one of those "rare case[s]" in which, during the plea allocution, "defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon . . . defendant's guilt or otherwise calls into question the voluntariness of the plea" (Lopez, 71 NY2d at 666).

Entered: May 8, 2015

Frances E. Cafarell

Clerk of the Court