| People v Sanabria |
| 2007 NY Slip Op 06769 [43 AD3d 1228] |
| September 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v StevenSanabria, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Washington County (Berke, J.),rendered May 26, 2006, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.
While he was incarcerated, defendant was found to be in possession of a modified razor. As aresult, he was charged in an indictment with two counts of promoting prison contraband in thefirst degree. In satisfaction of the charges, he pleaded guilty to attempted promoting prisoncontraband in the first degree. In accordance with the plea, he was sentenced as a second felonyoffender to 1½ to 3 years in prison, to run consecutive to the sentence he was then serving.Defendant now appeals.
Inasmuch as defendant did not make a motion to withdraw his plea or to vacate the judgmentof conviction, he has not preserved his challenge to the factual sufficiency of the plea allocution(see People v Masters, 36 AD3d959, 960 [2007], lv denied 8 NY3d 925 [2007]; People v Benton, 31 AD3d 1063 [2006]). He claims, however, thatan exception to the preservation requirement exists because he made a statement negating anessential element of the crime. Defendant's claim is not substantiated by the record. During theplea colloquy, defendant answered in the affirmative that he possessed a modified razor whileincarcerated and was aware that it was dangerous contraband. He did not make any statementsdrawing his guilt into question and was not required to recite the underlying facts of the crime(see People v Bagley, 34 [*2]AD3d 992, 993 [2006],lv denied 8 NY3d 878 [2007]). Consequently, the exception to the preservationrequirement is inapplicable (see Peoplev Palmer, 36 AD3d 1015, 1015 [2007], lv denied 8 NY3d 989 [2007]; People v Alexander, 31 AD3d885, 886 [2006]).
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment isaffirmed.