Opinion
149 KA 17–00206
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Lorenzo ARLINE, Defendant–Appellant.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. FLAHERTY, JR., SPECIAL DISTRICT ATTORNEY, WARSAW, FOR RESPONDENT.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT.
MICHAEL J. FLAHERTY, JR., SPECIAL DISTRICT ATTORNEY, WARSAW, FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25[2] ). Although defendant's contention that the plea was not knowingly, intelligently and voluntarily entered survives his waiver of the right to appeal (see People v. Gill, 149 A.D.3d 1597, 1597, 51 N.Y.S.3d 472 [4th Dept. 2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ), defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction on that ground and thus failed to preserve that contention for our review (see People v. Morrison, 78 A.D.3d 1615, 1616, 911 N.Y.S.2d 541 [4th Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).