Opinion
796 KA 17-00489
06-08-2018
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LEWIS SMITH, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. LEWIS SMITH, DEFENDANT-APPELLANT PRO SE. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT:
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
LEWIS SMITH, DEFENDANT-APPELLANT PRO SE.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered January 17, 2017. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.
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 criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant contends that his plea was not knowing, voluntary and intelligent because the prosecutor, eight months before the plea, incorrectly stated that defendant could be sentenced as a persistent felony offender (cf. People v Boykins, — AD3d —, —, 2018 NY Slip Op 02919, *2-3 [Apr. 27, 2018] [4th Dept 2018]). Defendant's contention is not preserved for our review inasmuch as he "did not move to withdraw the plea or to vacate the judgment of conviction on [the] ground" now raised on appeal (People v Brown, 151 AD3d 1951, 1952 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; see People v Gast, 114 AD3d 1270, 1270 [4th Dept 2014], lv denied 22 NY3d 1198 [2014]). In any event, that contention is without merit (see People v Johnson, 24 AD3d 1259, 1259 [4th Dept 2005], lv denied 6 NY3d 814 [2006]; see also People v Morrison, 78 AD3d 1615, 1616 [4th Dept 2010], lv denied 16 NY3d 834 [2011]).
Entered: June 8, 2018
Mark W. Bennett
Clerk of the Court