32 A.D.3d 1241
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v PAUL SCHAURER, Appellant.

Supreme Court, Appellate Division, Fourth Department, New York

820 N.Y.S.2d 827

Ronald A. Cicoria, J.; Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, JJ.

Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered May 3, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance 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 criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution with respect to the weight of the cocaine he sold (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Perry, 21 AD3d 1352 [2005], lv denied 5 NY3d 884 [2005]). Likewise, defendant’s challenge to the constitutionality of Penal Law § 220.43 has not been preserved for our review (see People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006], rearg denied 7 NY3d 742 [2006]; People v Davidson, 98 NY2d 738, 739-740 [2002]), nor was the requisite notice given to the Attorney General (see Executive Law § 71 [3]; People v McKeehan, 2 AD3d 1421, 1422, lv denied 3 NY3d 644 [2004]).

Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, JJ.