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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 232 SSM 22
The People &c.,
            Respondent,
        v.
Tyrone Davis,
            Appellant.




          Submitted by Steven A. Feldman, for appellant.
          Submitted by Thomas Constant, for respondent.




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
recitation negate the intent element of the crime to which he

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                                  - 2 -                       SSM No. 22

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]).
*   *   *   *     *   *   *   *    *      *   *   *   *   *   *   *   *
On review of submissions pursuant to section 500.11 of the Rules,
order affirmed, in a memorandum. Chief Judge Lippman and Judges
Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided November 20, 2014




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