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

1332
KA 09-02416
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

TIMOTHY M. NEUNER, DEFENDANT-APPELLANT.


LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET FIELD OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered October 7, 2009. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony.

     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 driving while intoxicated as a class E
felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former
(i)]). Defendant failed to move to withdraw his plea or to vacate the
judgment of conviction, and he therefore failed to preserve for our
review his challenge to the factual sufficiency of the plea allocution
(see People v Lopez, 71 NY2d 662, 665). Contrary to defendant’s
contention, “[t]he plea allocution does not ‘clearly cast[ ]
significant doubt upon the defendant’s guilt or otherwise call[ ] into
question the voluntariness of the plea,’ and thus defendant’s
contention does not fall within the rare case exception to the
preservation doctrine” (People v Loper, 38 AD3d 1178, 1179, quoting
Lopez, 71 NY2d at 666; see People v Farnsworth, 32 AD3d 1176, lv
denied 7 NY3d 867).




Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
