           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

614
KA 12-01040
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JEREMY M. JOHNSON, DEFENDANT-APPELLANT.


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.


     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.

     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
