People v. Mackey

Feb 7, 1991
Versions:77 N.Y.2d 846
569 N.E.2d 442
567 N.Y.S.2d 639
1991 N.Y. LEXIS 113

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted on two counts of criminal sale of a controlled substance in the third degree. Following allocution, he entered a plea of guilty to both charges. At the sentencing hearing, defendant moved to have the guilty plea withdrawn on the grounds of ineffective assistance of counsel and his misunderstanding of the sentence to be imposed by the court. The District Attorney’s objection to defendant’s motion was sustained and the court proceeded to sentence defendant as a second felony offender.

On this appeal, defendant urges that he should be permitted to withdraw his plea because the plea allocution suggested the availability of an agency defense, a claim which he made for the first time at the Appellate Division. Not having raised this issue in his motion to withdraw the plea or otherwise in the court of first instance, defendant has preserved no error for our review (People v. Lopez, 71 NY2d 662; People v Pellegrino, 60 NY2d 636; People v Warren, 47 NY2d 740).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.