Opinion
KA 03-02250.
June 10, 2005.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered August 18, 2003. The judgment revoked defendant's probation and imposed a sentence of imprisonment.
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MARY ANNE KOLB OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Scudder, Gorski, Martoche and Lawton, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking his probation and sentencing him to an indeterminate term of incarceration of 1 to 3 years based upon his underlying conviction of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). By failing to move to withdraw his admission to the violation of probation or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the admission was not voluntary ( see People v. Benson, 6 AD3d 1173, lv denied 3 NY3d 636; see generally People v. Lopez, 71 NY2d 662, 665). This case does not fall within the narrow exception to the preservation doctrine set forth in Lopez ( 71 NY2d at 666). The sentence is not unduly harsh or severe.