================================================================= This memorandum is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 232 SSM 22 The People &c., Respondent, v. Tyrone Davis, Appellant.

Submitted by Steven A. Feldman, for appellant. Submitted by Thomas Constant, for respondent.

MEMORANDUM: The order of the Appellate Division should be affirmed. Defendant failed to bring a motion to withdraw his plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10. Nor did his factual recitation negate the intent element of the crime to which he

- 1 - - 2 - SSM No. 22

pleaded guilty. His plea therefore does not qualify for the "rare case" exception to the preservation requirement under People v Lopez (71 NY2d 662, 666 [1988]). Consequently, defendant's challenge to the factual sufficiency of his allocution "was properly rejected by the Appellate Division and its order upholding the plea and conviction should be affirmed" (People v Toxey, 86 NY2d 725, 726 [1995]). * * * * * * * * * * * * * * * * * On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided November 20, 2014

- 2 -