Opinion
402
March 15, 2002.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered March 7, 2001, convicting defendant upon his plea of guilty of, inter alia, criminal possession 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 (Brian D. Dennis of counsel), for plaintiff-respondent.
PRESENT: WISNER, J.P., SCUDDER, KEHOE, BURNS, 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 appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), resisting arrest (Penal Law § 205.30) and unlawful possession of marihuana (Penal Law § 221.05). Defendant contends that the plea allocution with respect to the crime of criminal possession of a controlled substance in the third degree is factually insufficient. By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve that contention for our review ( see, People v. Lopez, 71 N.Y.2d 662, 665). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation doctrine ( see, People v. Toxey, 86 N.Y.2d 725, rearg denied 86 N.Y.2d 839).