Opinion
KA 02-01715
May 2, 2003.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered July 17, 2002, convicting defendant upon his plea of guilty of, inter alia, criminal sale of a controlled substance in the third degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (THOMAS D. REH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant failed to move to withdraw his plea of guilty or to vacate the judgment of conviction, and thus his present challenge to the factual sufficiency of the plea allocution is not preserved for our review ( see People v. Lopez, 71 N.Y.2d 662, 665). We reject the contention of defendant that his "plea allocution * * * qualif[ies] for the narrow, `rare case' exception to the preservation doctrine described in [ Lopez]" ( People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839).