People v. Utter
49 A.D.3d 1272
| N.Y. App. Div. | 2008

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal sale of a

*1273controlled substance in the third degree (Penal Law § 220.39 [1], [9]). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution by failing to move to withdraw the plea or to vacate the judgment of conviction {see People v Lopez, 71 NY2d 662, 665 [1988]), and we reject his contention that this case falls within the narrow exception to the preservation doctrine (see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995]; Lopez, 71 NY2d at 666). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.