| People v Cruz |
| 2012 NY Slip Op 06435 [98 AD3d 1273] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darain Cruz,Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedApril 15, 2011. The judgment convicted defendant, upon his plea of guilty, of attemptedpromoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted promoting prison contraband in the first degree (Penal Law §§ 110.00,205.25 [2]). Defendant failed to move to withdraw his plea or to vacate the judgment ofconviction and thus failed to preserve for our review his contention that the plea allocution wasfactually insufficient based on County Court's failure to obtain a waiver of the defense of mentaldisease or defect (see People vTrapp, 15 AD3d 916 [2005], lv denied 4 NY3d 891 [2005]). Nothing in the pleaallocution raised the possibility of that defense (cf. People v Lopez, 71 NY2d 662,666-668 [1988]; People v Costanza, 244 AD2d 988, 989 [1997]), and defendant'scontention therefore does not fall within the rare case exception to the preservation rule (seeLopez, 71 NY2d at 666). Present—Centra, J.P., Peradotto, Carni, Lindley andSconiers, JJ.