Opinion
February 10, 1999
Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Criminal Sale Controlled Substance, 3rd Degree.
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.
Judgment unanimously affirmed. Memorandum: By failing to move to withdraw the plea or to vacate the judgment, defendant failed to preserve for our review his contention concerning the factual sufficiency of his plea of guilty ( see, People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839; People v. Lopez, 71 N.Y.2d 662, 665). Contrary to defendant's contention, the plea allocution "does not qualify for the narrow, `rare case' exception to the preservation. doctrine" ( People v. Toxey, supra, at 726). Defendant failed to demonstrate prejudice resulting from his assigned counsel's delay in perfecting this appeal ( see, People v. Cousart, 58 N.Y.2d 62, 68; People v. Thomas, 212 A.D.2d 474, 475, lv denied 85 N.Y.2d 944).