Opinion
580 KA 19-00984
06-17-2021
The PEOPLE of the State of New York, Respondent, v. Hector SIERRA-GARCIA, Defendant-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25 [2] ), defendant contends that his waiver of the right to appeal is invalid and that his plea was "legally insufficient" for various reasons. Even assuming, arguendo, that the waiver of the right to appeal is invalid ( see People v. Smith , 191 A.D.3d 1243, 1244, 137 N.Y.S.3d 754 [4th Dept. 2021] ), we conclude that defendant failed to preserve his substantive contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction ( see People v. Rosario , 188 A.D.3d 1678, 1678, 132 N.Y.S.3d 361 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 125, 167 N.E.3d 1260 [2021] ), and this case does not fall within the narrow exception to the preservation requirement recognized in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988). In any event, we perceive no basis to vacate the plea.