| People v Birmingham |
| 2007 NY Slip Op 10374 [46 AD3d 1469] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James J.Birmingham, Appellant. |
—[*1] John C. Tunney, District Attorney, Bath, for respondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedMarch 16, 2005. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth 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,of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5]). Defendant failed to preserve for our review his challenge to the factual sufficiency of theplea allocution inasmuch as he failed to move to withdraw the plea or to vacate the judgment ofconviction (see People v Lopez, 71 NY2d 662, 665 [1988]; see also People vJohnson, 82 NY2d 683, 685 [1993]). Contrary to defendant's contention, this case does notfall within the rare exception to the preservation requirement (see Lopez, 71 NY2d at666). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P.,Martoche, Smith, Peradotto and Pine, JJ.