People v. Loper

Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), rendered October 3, 2005. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree and unauthorized use of a vehicle in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is modified on the law by directing that the sentence imposed for unauthorized use of a vehicle in the first degree shall run concurrently with the sentence imposed for burglary in the third degree and as modified the judgment is affirmed.

Memorandum:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the third degree *1179(Penal Law § 140.20) and unauthorized use of a vehicle in the first degree (§ 165.08). Defendant contends that the plea with respect to the offense of unauthorized use of a vehicle in the first degree was not knowingly or voluntarily entered because he was unaware of all of the elements of that offense. Defendant failed to move to withdraw the plea or to vacate the judgment of conviction on that ground and therefore has failed to preserve his contention for our review (see People v Brown, 305 AD2d 1068, 1068-1069 [2003], lv denied 100 NY2d 579 [2003]). The 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 Lopez, 71 NY2d 662, 666 [1988]; see People v Farnsworth, 32 AD3d 1176 [2006], lv denied 7 NY3d 867 [2006]; People v Oltz, 1 AD3d 934 [2003], lv denied 1 NY3d 632 [2004]). We agree with defendant, however, that County Court erred in directing that the sentence imposed for unauthorized use of a vehicle in the first degree shall run consecutively to the sentence imposed for burglary in the third degree (see People v Smith, 269 AD2d 778 [2000], lv denied 95 NY2d 804 [2000]; People v McDaniel, 161 AD2d 1125 [1990], lv denied 76 NY2d 861 [1990]). We therefore modify the judgment accordingly.

All concur except Scudder, EJ., and Green, J., who dissent in part and vote to affirm in the following memorandum.