People v Joseph

People v Joseph 2007 NY Slip Op 08681 [45 AD3d 1414] 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 Herbert Joseph, Jr., Appellant.

—[*1] Frederick P. Lester, Pittsford, for defendant-appellant.

Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), for respondent.

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.

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 [1]). 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 [1988]) and the voluntariness of the plea (see People v Aguayo, 37 AD3d 1081 [2007], lv denied 8 NY3d 981 [2007]). 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 [2005]; see People v Williams, 35 AD3d 1198, 1199 [2006], lv denied 8 NY3d 928 [2007]; People v Fifield, 24 AD3d 1221, 1222 [2005], lv denied 6 NY3d 775 [2006]), and the plea colloquy establishes that defendant's plea was voluntarily entered (see generally People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Hart, 284 AD2d 982 [2001], lv denied 97 NY2d 641 [2001]). Present—Hurlbutt, J.P., Centra, Lunn, Fahey and Pine, JJ.