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.
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: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
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, 161 A.D.3d 183, 184–85, 75 N.Y.S.3d 386, 2018 N.Y. Slip Op. 02919, *2–3, 2018 WL 1994505 [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 A.D.3d 1951, 1952, 59 N.Y.S.3d 227 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; see People v. Gast, 114 A.D.3d 1270, 1270, 980 N.Y.S.2d 221 [4th Dept. 2014], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014] ). In any event, that contention is without merit (see People v. Johnson, 24 A.D.3d 1259, 1259, 808 N.Y.S.2d 515 [4th Dept. 2005], lv denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006] ; see also People v. Morrison, 78 A.D.3d 1615, 1616, 911 N.Y.S.2d 541 [4th Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ).