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

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.