| People v Ortega |
| 2019 NY Slip Op 06912 [175 AD3d 1810] |
| September 27, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v David Ortega, Appellant. |
D.J. & J.A. Cirando, PLLC, Syracuse (Rebecca L. Konst of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedDecember 21, 2016. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal possession of a controlled substance in the third 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 criminal possession of a controlled substance in the third degree (Penal Law§§ 110.00, 220.16 [1]). As an initial matter, defendant correctly contends andthe People correctly concede that defendant's waiver of his right to appeal is invalid (seePeople v Willis, 161 AD3d 1584, 1584 [4th Dept 2018]; People v McCoy, 107 AD3d1454, 1454 [4th Dept 2013], lv denied 22 NY3d 957 [2013]). Nevertheless, althoughdefendant further contends that County Court erred in refusing to suppress physical evidence,"defendant forfeited the right to raise that suppression issue on appeal inasmuch as he pleadedguilty before the court issued a ruling thereon" (People v Dix, 170 AD3d 1575, 1576 [4th Dept 2019], lv denied33 NY3d 1030 [2019]; see People v Fernandez, 67 NY2d 686, 688 [1986];People v Rodgers, 162 AD3d 1500, 1501 [4th Dept 2018], lv denied 32 NY3d 940[2018]).
Defendant failed to preserve his contention that his plea was not knowingly, intelligently, andvoluntarily entered because he failed to move to withdraw the plea or vacate the judgment ofconviction (see People v Peter, 141 AD3d 1115, 1116 [4th Dept 2016]; see generallyPeople v Williams, 27 NY3d 212, 219 [2016]). We reject defendant's contention that thiscase falls within the narrow exception to the preservation doctrine (see People v Lopez,71 NY2d 662, 666 [1988]; People v Carlisle, 120 AD3d 1607, 1607-1608 [4th Dept2014], lv denied 24 NY3d 1082 [2014]), and we decline to exercise our power to reviewdefendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3] [c]). Contrary to defendant's further contention, the sentence is not unduly harsh orsevere.
We agree with defendant and the People correctly concede, however, that the sentence andcommitment form should be amended because it incorrectly reflects that defendant wassentenced as a second felony offender when he was actually sentenced as a second felony drugoffender (see People v Oberdorf, 136 AD3d 1291, 1292-1293 [4th Dept 2016], lvdenied 27 NY3d 1073 [2016]). Present—Centra, J.P., Peradotto, Carni, Troutman andWinslow, JJ.