exception to the preservation requirement in New York

2026The exception to the preservation requirement does not apply in this case, because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (<i>see</i> <i>People v Lopez</i>, 71 NY2d at 666 ).</p> <p>In any event, the plea allocution was sufficient. "[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime," and a plea allocution is sufficient if it "shows that the defendant understood the charges and made an

2026The exception to the preservation rule ( see Lopez , 71 NY2d at 666) does not apply here because defendant did not say anything during the plea colloquy that negated an element of the crime or raised the possibility of a defense ( see People v Sosa , 172 AD3d 432, 433 [1st Dept 2019]).

2025In that regard, an exception to the preservation rule applies "[i]n that rare case . . . where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt, [negates an essential element of the crime] or otherwise calls into question the voluntariness of the plea" ( People v Lopez , 71 NY2d 662, 666 [1988]; see People v Tyrell , 22 NY3d 359, 364 [2013]; People v Worden , 22 NY3d 982, 984 [2013]; People v Moses , 236 AD3d 1201, 1203 [3d Dept 2025]).

2025In that regard, an exception to the preservation rule applies "[i]n that rare case . . . where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt, [negates an essential element of the crime] or otherwise calls into question the voluntariness of the plea" ( People v Lopez , 71 NY2d 662, 666 [1988]; see People v Tyrell , 22 NY3d 359, 364 [2013]; People v Worden , 22 NY3d 982, 984 [2013]; People v Moses , 236 AD3d 1201 , 1203 [3d Dept 2025]).

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2026The exception to the preservation requirement does not apply in this case, because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (<i>see</i> <i>People v Lopez</i>, 71 NY2d at 666 ).</p> <p>In any event, the plea allocution was sufficient. "[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime," and a plea allocution is sufficient if it "shows that the defendant understood the charges and made an

2025In any event, the plea allocution was sufficient. "[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime," and a plea allocution is sufficient if it "shows that the defendant understood the charges and made an intelligent decision to enter a plea" ( People v Goldstein , 12 NY3d 295, 301 ; see People v Marinos , 209 AD3d 875, 875-876 ).

2020The Court of Appeals, however, has carved out an exception to the preservation doctrine, in certain instances. "because of the 'actual or practical unavailability of either a motion to withdraw the plea' or a 'motion to vacate the judgment of conviction,'" reasoning that " 'a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge' " ( id . quoting People v Louree , 8 NY3d 541, 546 [2007]; see People v Turner , 24 NY3d 254, 258 [2014]).

2020The Court of Appeals, however, has carved out an exception to the preservation doctrine, in certain instances. "because of the 'actual or practical unavailability of either a motion to withdraw the plea' or a 'motion to vacate the judgment of conviction,'" reasoning that " 'a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge' " ( id . quoting People v Louree , 8 NY3d 541, 546 [2007]; see People v Turner , 24 NY3d 254, 258 [2014]).

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2023Because the ownership status of the handgun did not negate an element of the crime, and as defendant made no other statements that would cast doubt upon his guilt or call into question the voluntariness of his plea, the exception to the preservation requirement is not implicated ( see People v Pastor , 28 NY3d 1089, 1090-1091 [2016]; People v Brown , 213 AD3d 1035, 1037 [3d Dept 2023], lv denied 39 NY3d 1153 [2023]).

2023Because the ownership status of the handgun did not negate an element of the crime, and as defendant made no other statements that would cast doubt upon his guilt or call into question the voluntariness of his plea, the exception to the preservation requirement is not implicated ( see People v Pastor , 28 NY3d 1089, 1090-1091 [2016]; People v Brown , 213 AD3d 1035, 1037 [3d Dept 2023], lv denied 39 NY3d 1153 [2023]).

2005Defendant made no statements during the final plea colloquy that negated an essential element of the crime or cast doubt upon his guilt and his responses to County Court’s questions established the elements of the crime; therefore, the exception to the preservation rule is inapplicable (see People v Hermanee, 12 AD3d 851, 852 [2004]; People v Kelly, supra at 789 ; see also People v Goodell, 13 AD3d 816, 817 [2004], lv denied 4 NY2d 831 [2005]; People v Kemp, 288 AD2d 635, 636 [2001]).

2005The exception to the preservation rule is inapplicable because defendant made no statements during the plea allocution that were inconsistent with his guilt (see People v Lopez, 71 NY2d 662, 666-667 [1988]; People v Kelly, supra at 789 ; People v Kalenak, supra at 902 ; People v Kemp, 288 AD2d 635, 636 [2001]).

2025The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court ( see People v Peque , 22 NY3d 168, 182 ; People v Brown , 170 AD3d 878 , 879), and an exception to the preservation rule is inapplicable in this case ( see People v Anderson , 223 AD3d 912, 912 ; People v Gray , 217 AD3d 882, 882 ).

2025The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court ( see People v Peque , 22 NY3d 168, 182 ; People v Brown , 170 AD3d 878 , 879), and an exception to the preservation rule is inapplicable in this case ( see People v Anderson , 223 AD3d 912, 912 ; People v Gray , 217 AD3d 882, 882 ).

2024Moreover, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( see People v Williams , 27 NY3d at 214 ; People v Morris , 200 AD3d 995, 996 ), and we decline to consider the defendant's contention in the exercise of our interest of justice jurisdiction.

2022Contrary to the defendant's contention, the exception to the preservation requirement ( see People v Pastor , 28 NY3d at 1091 ; People v Williams , 27 NY3d 212, 221-222 ) is inapplicable here, as the plea colloquy, along with the defendant's acknowledgment that his attorney had discussed with him the possible immigration consequences of his plea, were sufficient to provide the defendant the opportunity to discover any error ( see People v Mejia , 195 AD3d 1043 , 1045; cf. People v Ulanov , 188 AD3d 1271 , 1271).

2024In any event, the record shows that the defendant's pleas of guilty were knowingly, intelligently, and voluntarily entered ( see People v Defilippis , 210 AD3d at 1004 ; see generally People v Conceicao , 26 NY3d 375, 382-384 ).

2021Preliminarily, we agree with defendant that, contrary to the People's assertion, an exception to the preservation requirement applies here inasmuch as defendant "could not have brought a CPL 220.60 (3) plea withdrawal motion . . . because the plea and sentence occurred during the same proceeding[, and] he could not have filed a CPL 440.10 motion because the [alleged] error in th[is] case[ is] 'clear from the face of the . . . record' " ( People v Tyrell , 22 NY3d 359, 364 [2013]; see People v Conceicao , 26 NY3d 375, 381-382 [2015]; People v Sougou , 26 NY3d 1052, 1054 [2015]).

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2012While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666 ), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 5

2016Moreover, the exception to the preservation rule is not applicable here, as defendant made no statements during the plea colloquy that were inconsistent with his guilt or cast doubt upon the voluntari *1239 ness of his plea (see People v Skidds, 123 AD3d 1342 , 1342-1343 [2014], lv denied 25 NY3d 992 [2015]; People v Lewis, 69 AD3d 1232, 1234 [2010]).

2014Moreover, defendant made no statements during his plea allocution that were inconsistent with his guilt or that cast doubt on the voluntariness of his plea, so the exception to the preservation requirement is not applicable (see People v Secore, 102 AD3d at 1058 ; People v Lewis, 69 AD3d 1232, 1234 [2010]).

2025The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the County Court ( see People v Peque , 22 NY3d 168, 182; People v Brown , 170 AD3d 878, 879), and the exception to the preservation rule is inapplicable in this case ( see People v Anderson , 223 AD3d 912; People v Kaye , 190 AD3d 767, 768).

2025The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court ( see People v Peque , 22 NY3d 168, 182; People v Brown , 170 AD3d 878, 879), and an exception to the preservation rule is inapplicable in this case ( see People v Anderson , 223 AD3d 912; People v Kaye , 190 AD3d 767, 768).

2025The exception to the preservation requirement does not apply in this case because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v Lopez , 71 NY2d at 666; People v Escobargarcia , 237 AD3d at 1222; People v Javiel , 231 AD3d at 967).

2025The exception to the preservation requirement does not apply in this case because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v Lopez , 71 NY2d at 666; People v Escobargarcia , 237 AD3d at 1222; People v Javiel , 231 AD3d at 967).

2026Moreover, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( see generally People v McNair , 13 NY3d 821, 822-823 ; People v Steele , 197 AD3d 512, 513 ).

2024Moreover, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( see generally People v McNair , 13 NY3d 821, 822-823 ; People v Steele , 197 AD3d 512, 513 ).

2021Preliminarily, we agree with defendant that, contrary to the People's assertion, an exception to the preservation requirement applies here inasmuch as defendant "could not have brought a CPL 220.60 (3) plea withdrawal motion . . . because the plea and sentence occurred during the same proceeding[, and] he could not have filed a CPL 440.10 motion because the [alleged] error in th[is] case[ is] 'clear from the face of the . . . record' " ( People v Tyrell , 22 NY3d 359, 364 [2013]; see People v Conceicao , 26 NY3d 375, 381-382 [2015]; People v Sougou , 26 NY3d 1052, 1054 [2015]).

2021Therefore, defendant's claim is reviewable under the exception to the preservation rule ( see People v Sougou , 26 NY3d 1052, 1054 [2015]).

2006Moreover, the exception to the preservation rule is inapplicable because defendant did not make any statements during his plea allocution which were inconsistent with his guilt such as to negate a material element of the crime (see People v Lopez, 71 NY2d 662, 666-667 [1988]; People v Kelly, 3 AD3d 789, 789 [2004], lv denied 2 NY3d 801 [2004]).

2005Contrary to defendant’s contention, his factual recitation during the plea colloquy did not negate an essential element of the crime or cast doubt upon his guüt and, therefore, the exception to the preservation rule is inapplicable (see People v Hermance, 12 AD3d 851, 852 [2004]; People v Kelly, supra at 789 ).

2020Contrary to the defendant's contention, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( see People v Davis , 24 NY3d 1012, 1013 ; People v Chambers , 177 AD3d at 645-646).

2019Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, since the plea allocution did not cast significant doubt upon the defendant's guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v Davis , 24 NY3d 1012, 1013 ; People v Ramos , 164 AD3d 922 , 922-923).

2015Although defendant’s challenge to the voluntariness of his plea survives his appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), this issue is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, and the exception to the preservation requirement is inapplicable (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Balbuena, 123 AD3d 1384, 1385 [2014]).

2009Although defendant’s challenge to the voluntariness of the plea survives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Lewis, 48 AD3d at 881 ), it is unpreserved for our review, and the exception to the preservation requirement is inapplicable here (see People v Nunez, 56 AD3d 897 , 898 [2008], lv denied 11 NY3d 928 [2009]; People v Hull, 52 AD3d 962, 963 [2008]; People v Kilgore, 45 AD3d 886, 887-888 [2007], lv denied 10 NY3d 767 [2008]).