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

279
KA 09-02650
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MANUEL CUBI, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 3, 2009. The judgment
convicted defendant, upon his plea of guilty, of murder 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 murder in the second degree (Penal Law §
125.25 [1]). Defendant contends that the plea colloquy cast
significant doubt on the voluntariness of his plea and that it was
factually insufficient because he failed to admit that he intended to
kill the victim and thus that the rare exception to the preservation
doctrine applies. We reject that contention (see People v Toxey, 86
NY2d 725, 726, rearg denied 86 NY2d 839; People v Lopez, 71 NY2d 662,
666; see generally People v McNair, 13 NY3d 821, 822).

     By failing to move to withdraw his plea or to vacate the judgment
of conviction, defendant failed to preserve for our review his
contentions that the plea allocution was factually insufficient (see
Lopez, 71 NY2d at 665), and that the plea was not knowingly and
voluntarily entered (see People v Bloom, 96 AD3d 1406, 1406, lv denied
19 NY3d 1024). In any event, we conclude that defendant’s contentions
are without merit. With respect to the factual sufficiency of the
plea allocution, we note that defendant explained to Supreme Court
that he heard an argument involving the victim and defendant’s mother
and that he therefore retrieved a sawed-off shot gun that was hidden
under a dumpster. Defendant approached the scene and heard the victim
curse at his mother. When the victim looked at defendant, defendant
shot him in the chest from a distance of 9 to 11 feet. We thus
conclude that the plea allocution was factually sufficient. Although
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                                                         KA 09-02650

defendant did not admit that he intended to kill the victim, it is
well established that “an allocution based on a negotiated plea need
not elicit from a defendant specific admissions as to each element of
the charged crime . . . It is enough that the allocution shows that
the defendant understood the charges and made an intelligent decision
to enter a plea” (People v Goldstein, 12 NY3d 295, 301). We further
conclude that the plea was knowingly and voluntarily entered inasmuch
as the record establishes that the 16-year-old defendant understood
the consequences of his plea of guilty and that he was pleading guilty
in exchange for a negotiated sentence that was less than the maximum
term of imprisonment (see generally People v Harris, 61 NY2d 9, 19).
The sentence is not unduly harsh or severe.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
