| People v Elliott |
| 2013 NY Slip Op 04196 [107 AD3d 1466] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ShaunK. Elliott, Appellant. |
—[*1] Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse(John A. Cirando of counsel), for respondent.
Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.),rendered July 9, 2010. The judgment convicted defendant, upon his plea of guilty, ofcriminal sale of a controlled substance in the third degree.
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 ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), defendant contends that County Court erred in accepting his Alford pleabecause the record lacked the requisite "strong evidence of actual guilt" to support hisplea. That contention survives his waiver of the right to appeal to the extent that itimplicates the voluntariness of the plea (see People v Dash, 74 AD3d 1859, 1860 [2010], lvdenied 15 NY3d 892 [2010]; People v Dille, 21 AD3d 1298, 1298 [2005], lv denied5 NY3d 882 [2005]). By failing to move to withdraw the plea or vacate the judgmentof conviction on the ground that the record lacked the requisite "strong evidence ofactual guilt," however, defendant failed to preserve his contention for our review (seeDille, 21 AD3d at 1298; People v Ebert, 15 AD3d 781, 782 [2005]), and this casedoes not fall within the narrow exception to the preservation requirement (see Peoplev Lopez, 71 NY2d 662, 666 [1988]; Dille, 21 AD3d at 1298). In any event,we conclude that "the record establishes that defendant's Alford plea was theproduct of a voluntary and rational choice, and the record . . . containsstrong evidence of actual guilt" (Dash, 74 AD3d at 1860 [internal quotationmarks omitted]). Present—Smith, J.P., Fahey, Carni, Valentino and Whalen, JJ.