| People v Smith |
| 2018 NY Slip Op 04247 [162 AD3d 1597] |
| June 8, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Lewis Smith, Appellant. |
David P. Elkovitch, Auburn, for defendant-appellant.
Lewis Smith, defendant-appellant pro se.
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.), renderedJanuary 17, 2017. The judgment convicted defendant, upon his plea of guilty, of criminal sale ofa 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 his plea was not knowing, voluntary and intelligent because theprosecutor, eight months before the plea, incorrectly stated that defendant could be sentenced as apersistent felony offender (cf. People v Boykins, 161 AD3d 183, 187 [4th Dept 2018]). Defendant's contention is not preserved for our reviewinasmuch as he "did not move to withdraw the plea or to vacate the judgment of conviction on[the] ground" now raised on appeal (People v Brown, 151 AD3d 1951, 1952 [4th Dept 2017], lvdenied 29 NY3d 1124 [2017]; seePeople v Gast, 114 AD3d 1270, 1270 [4th Dept 2014], lv denied 22 NY3d 1198[2014]). In any event, that contention is without merit (see People v Johnson, 24 AD3d 1259, 1259 [4th Dept 2005], lvdenied 6 NY3d 814 [2006]; see alsoPeople v Morrison, 78 AD3d 1615, 1616 [4th Dept 2010], lv denied 16 NY3d834 [2011]). Present—Whalen, P.J., Smith, Carni, NeMoyer and Troutman, JJ.