People v. Brinson

Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of Counsel), for Defendant–Appellant.

R. Michael Tantillo, District Attorney, Canandaigua (Jason A. MacBride of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DeJOSEPH, JJ.

Opinion

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). Defendant did not move to withdraw the plea or to vacate the judgment of conviction, and he therefore failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently enter the plea (see People v. Davis, 45 A.D.3d 1357, 1357–1358, 844 N.Y.S.2d 739, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879 ). Furthermore, “inasmuch as nothing in the plea

colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea” ( People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 ), this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5. In any event, defendant's contention is without merit ( see People v. Smith, 37 A.D.3d 1141, 1142, 829 N.Y.S.2d 375, lv. denied 9 N.Y.3d 851, 840 N.Y.S.2d 777, 872 N.E.2d 890, reconsideration denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900 ).

Finally, the sentence is not unduly harsh or severe.

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