People v. Etten

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of criminal contempt in the first degree and assault in the third degree, contending that his guilty plea should be vacated because his factual allocution is insufficient to support the conviction. Defendant failed to preserve that contention for our review, either by moving to withdraw the plea pursuant to CPL 220.60 (3) or to vacate the judgment of conviction pursuant to CPL 440.10 (see, People v Toxey, 86 NY2d 725, 726, rearg denied 86 NY2d 839; People v Pellegrino, 60 NY2d 636). Further, defendant’s factual allocution does not qualify for the narrow “rare case” exception to the preservation doctrine, where the allocution negates an essential element of the crime and thus casts “significant doubt” upon defendant’s guilt or otherwise calls into question the voluntariness of the plea (People v Lopez, 71 NY2d 662, 666). (Appeal from Judgment of Ontario County Court, Marks, J.— Criminal Contempt, 1st Degree.) Present—Denman, P. J., Green, Hayes, Balio and Fallon, JJ.