| People v Joseph |
| 2007 NY Slip Op 08681 [45 AD3d 1414] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HerbertJoseph, Jr., Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Joan S. Kohout, A.J.), renderedJune 13, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted criminalsale of a 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 ofattempted 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 ofconviction and thus failed to preserve for our review his challenges to the factual sufficiency ofthe plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]) and the voluntarinessof the plea (see People v Aguayo,37 AD3d 1081 [2007], lv denied 8 NY3d 981 [2007]). In any event, defendant'schallenges lack merit. "[N]o factual colloquy was required inasmuch as defendant pleaded guiltyto a lesser included offense" (People vThelbert, 17 AD3d 1049, 1049 [2005]; see People v Williams, 35 AD3d 1198, 1199 [2006], lvdenied 8 NY3d 928 [2007]; Peoplev Fifield, 24 AD3d 1221, 1222 [2005], lv denied 6 NY3d 775 [2006]), and theplea colloquy establishes that defendant's plea was voluntarily entered (see generally People vFiumefreddo, 82 NY2d 536, 543 [1993]; People v Hart, 284 AD2d 982 [2001], lvdenied 97 NY2d 641 [2001]). Present—Hurlbutt, J.P., Centra, Lunn, Fahey and Pine,JJ.