People v. Almarez

Jun 10, 2005
Versions:19 A.D.3d 1005
796 N.Y.S.2d 780
2005 N.Y. App. Div. LEXIS 6319

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RICHARD ALMAREZ, Appellant. [796 NYS2d 780]—Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered April 6, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25 [2]). By pleading guilty, defendant forfeited his right to raise on appeal his present contentions regarding the allegations in the indictment (see generally People v Hansen, 95 NY2d 227, 230-232 [2000]; People v Thomas, 53 NY2d 338, 342 n 2 [1981]). In addition, those contentions are not preserved for our review because defendant did not move to withdraw the plea or to vacate the judgment of conviction (see generally People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995]; People v Baxter, 302 AD2d 950, 951 [2003], lv denied 99 NY2d 652 [2003]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant‘s further contention that Penal Law § 205.25 (2) is unconstitutional is also unpreserved for our review (see People v McKeehan, 2 AD3d 1421, 1422, lv denied 3 NY3d 644 [2004]), and the record does not establish that the requisite notice was given to the Attorney General (see Executive Law § 71 [3]; McKeehan, 2 AD3d at 1422). Present—Pigott, Jr., P.J., Gorski, Smith, Pine and Lawton, JJ.