Lopez exception in New York

2026Despite such constraints, defendant contends that the Lopez exception to the preservation doctrine applies to his challenge to the voluntariness of his guilty plea because his statements at sentencing "cast significant doubt on his guilt." Defendant further argues that our decision in People v Pastor ( 28 NY3d 1089 [2016]) "strongly suggest[s]" that the Lopez exception extends to his challenge to the validity of his plea based on statements that he made during sentencing.

2026Despite such constraints, defendant contends that the Lopez exception to the preservation doctrine applies to his challenge to the voluntariness of his guilty plea because his statements at sentencing "cast significant doubt on his guilt." Defendant further argues that our decision in People v Pastor ( 28 NY3d 1089 [2016]) "strongly suggest[s]" that the Lopez exception extends to his challenge to the validity of his plea based on statements that he made during sentencing.

2023Guo Lin Wu and United appeal. "[T]o establish a claim for common-law indemnification, a party must prove not only that [it was] not negligent, but also that the proposed indemnitor . . . was responsible for negligence that contributed to the accident" ( Fedrich v Granite Bldg. 2, LLC , 165 AD3d 754 , 756 [internal quotation marks omitted]). "[W]here a party is held liable at least partially because of his own negligence, contribution against other culpable tort-feasors is the only available remedy" ( Glaser v Fortunoff of Westbury Corp. , 71 NY2d 643, 646 ).

2022Gresham , 151 AD3d at 1178 ), the Court of Appeals did not expand the Lopez rule to such post-plea statements in People v Pastor ( 28 NY3d 1089 [2016]); rather, the Court of Appeals' memorandum in that case noted that the defendant "said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense" ( id. at 1090-1091 ), and it declined to apply the Lopez rule under those circumstances.

2022Gresham , 151 AD3d at 1178 ), the Court of Appeals did not expand the Lopez rule to such post-plea statements in People v Pastor ( 28 NY3d 1089 [2016]); rather, the Court of Appeals' memorandum in that case noted that the defendant "said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense" ( id. at 1090-1091 ), and it declined to apply the Lopez rule under those circumstances.

2021A jury verdict should not be set aside as against the weight of the evidence unless the [*2]verdict could not have been reached upon any fair interpretation of the evidence ( see Nicastro v Park , 113 AD2d 129 [1985]).

2016In People v Louree ( 8 NY3d 541 [2007]), we adopted a variant of the Lopez exception applicable to the defendant’s claim that his plea was involuntary under People v Catu ( 4 NY3d 242 [2005]) based on the particular circumstances of the defendant’s plea and sentencing proceedings (see Louree, 8 NY3d at 546 ).

2016In People v Louree ( 8 NY3d 541 - 10 - - 11 - No. 36 [2007]), we adopted a variant of the Lopez exception applicable to the defendant's claim that his plea was involuntary under People v Catu ( 4 NY3d 242 [2005]) based on the particular circumstances of the defendant's plea and sentencing proceedings (see Louree, 8 NY3d at 546 ).

2016In People v Louree ( 8 NY3d 541 [2007]), we adopted a variant of the Lopez exception applicable to the defendant’s claim that his plea was involuntary under People v Catu ( 4 NY3d 242 [2005]) based on the particular circumstances of the defendant’s plea and sentencing proceedings (see Louree, 8 NY3d at 546 ).

2016In People v Louree ( 8 NY3d 541 [2007]), we adopted a variant of the Lopez exception applicable to the defendant’s claim that his plea was involuntary under People v Catu ( 4 NY3d 242 [2005]) based on the particular circumstances of the defendant’s plea and sentencing proceedings (see Louree, 8 NY3d at 546 ).

2009We held, however, in People v Lopez ( 71 NY2d 662, 665 [1988]), that a preservation requirement does apply to most guilty pleas: “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea ... or a motion to vacate the judgment of conviction.” We later made clear that the Lopez requirement applies to plea allocutions generally, even where the problem is not one of “factual sufficiency” (People v Clarke, 93 NY2d 904 [1999]).

2008Defendant has effectively waived his claim that his plea allocution might have placed him within the preservation exception of People v Lopez ( 71 NY2d 662 [1988]), since he did not raise a Lopez issue in his affidavit of errors (see People v Klein, 7 NY2d 264 [1959], supra).

2001The Lopez exception applies where a defendant’s factual recitation casts significant doubt on his guilt by negating an essential element of the crime (see, id., at 666 ), “not where the sufficiency of the articulation of the element is challenged” (People v Vonderchek, 245 AD2d 979, 980 , lv denied 91 NY2d 945 ).

2001The Lopez exception applies where a defendant’s factual recitation casts significant doubt on his guilt by negating an essential element of the crime (see, id., at 666 ), “not where the sufficiency of the articulation of the element is challenged” (People v Vonderchek, 245 AD2d 979, 980 , lv denied 91 NY2d 945 ).

2001In light of County Court’s explanation regarding the element of physical injury and defendant’s admission that, during the course of the robbery, he kicked the victim in the face while the victim was lying on the ground, thereby causing physical injury to the victim, there is no basis for further appellate review of defendant’s claim (compare, People v Smith, 272 AD2d 782 , lv denied 95 NY2d 871 ; People v Medina, 262 AD2d 708 , lv denied 93 NY2d 1023 , with People v Ocasio, 265 AD2d 675 ).

2001In light of County Court’s explanation regarding the element of physical injury and defendant’s admission that, during the course of the robbery, he kicked the victim in the face while the victim was lying on the ground, thereby causing physical injury to the victim, there is no basis for further appellate review of defendant’s claim (compare, People v Smith, 272 AD2d 782 , lv denied 95 NY2d 871 ; People v Medina, 262 AD2d 708 , lv denied 93 NY2d 1023 , with People v Ocasio, 265 AD2d 675 ).

2001In light of County Court’s explanation regarding the element of physical injury and defendant’s admission that, during the course of the robbery, he kicked the victim in the face while the victim was lying on the ground, thereby causing physical injury to the victim, there is no basis for further appellate review of defendant’s claim (compare, People v Smith, 272 AD2d 782 , lv denied 95 NY2d 871 ; People v Medina, 262 AD2d 708 , lv denied 93 NY2d 1023 , with People v Ocasio, 265 AD2d 675 ).

2001In light of County Court’s explanation regarding the element of physical injury and defendant’s admission that, during the course of the robbery, he kicked the victim in the face while the victim was lying on the ground, thereby causing physical injury to the victim, there is no basis for further appellate review of defendant’s claim (compare, People v Smith, 272 AD2d 782 , lv denied 95 NY2d 871 ; People v Medina, 262 AD2d 708 , lv denied 93 NY2d 1023 , with People v Ocasio, 265 AD2d 675 ).

2001In light of County Court’s explanation regarding the element of physical injury and defendant’s admission that, during the course of the robbery, he kicked the victim in the face while the victim was lying on the ground, thereby causing physical injury to the victim, there is no basis for further appellate review of defendant’s claim (compare, People v Smith, 272 AD2d 782 , lv denied 95 NY2d 871 ; People v Medina, 262 AD2d 708 , lv denied 93 NY2d 1023 , with People v Ocasio, 265 AD2d 675 ).

2001In light of County Court’s explanation regarding the element of physical injury and defendant’s admission that, during the course of the robbery, he kicked the victim in the face while the victim was lying on the ground, thereby causing physical injury to the victim, there is no basis for further appellate review of defendant’s claim (compare, People v Smith, 272 AD2d 782 , lv denied 95 NY2d 871 ; People v Medina, 262 AD2d 708 , lv denied 93 NY2d 1023 , with People v Ocasio, 265 AD2d 675 ).

1998In a case relied on by defendant herein, the Second Department previously held that the Lopez exception to the preservation requirement applies in a situation such as the instant case, where defendant pleads guilty to first-degree robbery but states at the plea allocution that the weapon was unloaded or inoperable (People v LeGrand, 155 AD2d 482, 483 , lv denied 75 NY2d 814 ).

1998In a case relied on by defendant herein, the Second Department previously held that the Lopez exception to the preservation requirement applies in a situation such as the instant case, where defendant pleads guilty to first-degree robbery but states at the plea allocution that the weapon was unloaded or inoperable (People v LeGrand, 155 AD2d 482, 483 , lv denied 75 NY2d 814 ).

1998However, that Court reached the opposite conclusion, overruling LeGrand (supra), in People v Willingham ( 194 AD2d 703 , lv denied 82 NY2d 729 ) in which it held that the defendant’s statements at the plea allocution, to the effect that he held his hand inside his pocket so as to simulate a gun, “did not negate an element of the crimes to which he pleaded but actually were admissions of the element ‘[d]isplay[ed] what appear [ed] to be a pistol [or]- revolver’ (Penal Law § 160.15 [4])”.

1998However, that Court reached the opposite conclusion, overruling LeGrand (supra), in People v Willingham ( 194 AD2d 703 , lv denied 82 NY2d 729 ) in which it held that the defendant’s statements at the plea allocution, to the effect that he held his hand inside his pocket so as to simulate a gun, “did not negate an element of the crimes to which he pleaded but actually were admissions of the element ‘[d]isplay[ed] what appear [ed] to be a pistol [or]- revolver’ (Penal Law § 160.15 [4])”.

1998In People v Acevedo ( 219 AD2d 560 , lv denied 87 NY2d 969 ), relying on Toxey (supra), we similarly declined to review defendant’s unpreserved argument that the court should not have accepted his plea without first asking whether he understood that he had raised an affirmative defense to first-degree robbery by claiming that the gun possessed by his accomplice was unloaded.

1998In People v Acevedo ( 219 AD2d 560 , lv denied 87 NY2d 969 ), relying on Toxey (supra), we similarly declined to review defendant’s unpreserved argument that the court should not have accepted his plea without first asking whether he understood that he had raised an affirmative defense to first-degree robbery by claiming that the gun possessed by his accomplice was unloaded.

1998More recently, in People v Toxey ( 86 NY2d 725, 726 ), the Court of Appeals affirmed this Court’s determination that the Lopez exception did not apply where the defendant pleaded guilty to first-degree robbery but stated, “ ‘I don’t carry weapons,’ ” and the trial court failed to follow up on the possible affirmative defense thereby raised.

1998More recently, in People v Toxey ( 86 NY2d 725, 726 ), the Court of Appeals affirmed this Court’s determination that the Lopez exception did not apply where the defendant pleaded guilty to first-degree robbery but stated, “ ‘I don’t carry weapons,’ ” and the trial court failed to follow up on the possible affirmative defense thereby raised.

1998However, that Court reached the opposite conclusion, overruling LeGrand (supra), in People v Willingham ( 194 AD2d 703 , lv denied 82 NY2d 729 ) in which it held that the defendant’s statements at the plea allocution, to the effect that he held his hand inside his pocket so as to simulate a gun, “did not negate an element of the crimes to which he pleaded but actually were admissions of the element ‘[d]isplay[ed] what appear [ed] to be a pistol [or]- revolver’ (Penal Law § 160.15 [4])”.

1998However, that Court reached the opposite conclusion, overruling LeGrand (supra), in People v Willingham ( 194 AD2d 703 , lv denied 82 NY2d 729 ) in which it held that the defendant’s statements at the plea allocution, to the effect that he held his hand inside his pocket so as to simulate a gun, “did not negate an element of the crimes to which he pleaded but actually were admissions of the element ‘[d]isplay[ed] what appear [ed] to be a pistol [or]- revolver’ (Penal Law § 160.15 [4])”.