| People v Davis |
| 2007 NY Slip Op 08586 [45 AD3d 1357] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joe L. Davis,Appellant. |
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Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedOctober 26, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal sale ofa controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal 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, andintelligently entered survives his waiver of the right to appeal, defendant failed to preserve thatcontention for our review by moving to withdraw the plea or to vacate the judgment ofconviction (see People v McKay, 5AD3d 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 withinthe rare exception to the preservation requirement set forth in People v Lopez (71 NY2d662, 666 [1988]). Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.