| People v Baker |
| 2008 NY Slip Op 02385 [49 AD3d 1293] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert Baker,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedOctober 28, 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 is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofcriminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]).The contention of defendant that County Court erred in denying his motion to dismiss theindictment does not survive his valid waiver of the right to appeal (see People v Castillo,208 AD2d 944 [1994]), nor in any event does it survive his guilty plea (see People vPorter, 300 AD2d 698, 699 [2002], lv denied 100 NY2d 541 [2003]). The furthercontention of defendant that his plea was not knowing, voluntary and intelligent survives hiswaiver of the right to appeal, but defendant failed to preserve that contention for our review byfailing to move to withdraw the plea or to vacate the judgment of conviction (see People v Davis, 45 AD3d 1357[2007], lv denied 9 NY3d 1005 [2007]). Present—Scudder, P.J., Centra, Lunn,Fahey and Green, JJ.