People v Cruz

2011 NY Slip Op 00870

Decided on February 10, 2011

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 10, 2011


PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.
109 KA 09-00835




Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered April 3, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fourth degree (three counts), criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree.


ROBERT TUCKER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant contends that his plea was not voluntarily entered inasmuch as he entered the plea because of the length of his pre-plea incarceration and his desire to obtain medical treatment in a state prison. "[D]efendant failed to preserve that challenge for our review by moving to withdraw his plea or [raising that ground in his motion to] vacate the judgment of conviction" (People v Cloyd, 78 AD3d 1669, ___). We reject defendant's contention that this is one of those rare cases in which the exception to the preservation requirement applies (see People v Lopez, 71 NY2d 662, 666). The record establishes that County Court, "when confronted with statements casting significant doubt upon [the voluntariness of the plea], properly conducted further inquiry to ensure that [the] plea was . . . voluntary" (id. at 667-668; see People v High, 46 AD3d 1435, lv denied 10 NY3d 812). The sentence is not unduly harsh or severe.
Entered: February 10, 2011
Patricia L. Morgan
Clerk of the Court