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

510
KA 10-01775
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

KELVIN SPEARS, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered July 31, 2009. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse 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 sexual abuse in the second degree (Penal
Law § 130.60 [2]). We agree with defendant that Supreme Court’s
“single reference to [the] right to appeal is insufficient to
establish that the court engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice” (People v Adger, 83 AD3d 1590, 1591, lv
denied 17 NY3d 857 [internal quotation marks omitted]). Contrary to
defendant’s contention, the court did not abuse its discretion in
denying his request for an adjournment at sentencing (see generally
People v Aikey, 94 AD3d 1485, 1486, lv denied 19 NY3d 956; People v
LaCroce, 83 AD3d 1388, 1388, lv denied 17 NY3d 807). Additionally,
defendant failed to preserve for our review his contention that the
plea colloquy was factually insufficient inasmuch as he failed to move
to withdraw his plea of guilty or to vacate the judgment of conviction
on that ground (see People v Lopez, 71 NY2d 662, 665; People v
Streeter, 23 AD3d 1113, 1114, lv denied 6 NY3d 759). The narrow
exception to the preservation rule does not apply here (see Lopez, 71
NY2d at 666), and in any event defendant’s contention lacks merit (see
id. at 666 n 2; People v Scott, 15 AD3d 883, 884, lv denied 4 NY3d
856).

Entered:   May 3, 2013                             Frances E. Cafarell
                                                   Clerk of the Court
