Opinion
No. KA 06-02511.
November 9, 2007.
Appeal from a judgment of the Livingston County Court (Joan S. Kohout, A. J), rendered June 13, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.
FREDERICK P. LESTER, PITTSFORD, FOR DEFENDANT-APPELLANT.
THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Centra, Lunn, Fahey and Pine, JJ.
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 attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39). Defendant failed to move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenges to the factual sufficiency of the plea allocution ( see People v Lopez, 71 NY2d 662, 665) and the voluntariness of the plea ( see People v Aguayo, 37 AD3d 1081, lv denied 8 NY3d 981). In any event, defendant's challenges lack merit. "[N]o factual colloquy was required inasmuch as defendant pleaded guilty to a lesser included offense" ( People v Thelbert, 17 AD3d 1049, 1049; see People v Williams, 35 AD3d 1198, 1199, lv denied 8 NY3d 928; People v Fifield, 24 AD3d 1221, 1222, lv denied 6 NY3d 775), and the plea colloquy establishes that defendant's plea was voluntarily entered ( see generally People v Fiumefreddo, 82 NY2d 536, 543; People v Hart, 284 AD2d 982, lv denied 97 NY2d 641).