People v Davis

People v Davis 2007 NY Slip Op 08586 [45 AD3d 1357] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Joe L. Davis, Appellant.

—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Gerald T. Barth of counsel), for defendant-appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered October 26, 2004. 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 be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals 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]). Although the contention of defendant that his plea was not voluntarily, knowingly, and intelligently entered survives his waiver of the right to appeal, defendant failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction (see People v McKay, 5 AD3d 1040, 1041 [2004], lv denied 2 NY3d 803 [2004]; People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]). This case does not fall within the rare exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]). Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.