PEOPLE v. MIRANDA (2024)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Dagoberto C. MIRANDA, Defendant-Appellant.

891 Decided: December 20, 2024

PRESENT: SMITH, J.P., BANNISTER, MONTOUR, GREENWOOD, AND KEANE, JJ.

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DANIEL P. HUGHES OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). Although defendant retains the right to appellate review of his challenge to the voluntariness of the plea regardless of the validity of his waiver of the right to appeal (see People v Thomas, 34 NY3d 545, 566 [2019], cert denied ––– US ––––, 140 S Ct 2634 [2020]), defendant correctly concedes that his challenge is not preserved for our review because he did not move to withdraw his guilty plea or to vacate the judgment of conviction (see People v Edmonds, 229 AD3d 1275, 1276 [4th Dept 2024]; People v Brown, 151 AD3d 1951, 1952 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]). We decline to exercise our power to review defendant's challenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; People v Cornish, 214 AD3d 1456, 1456 [4th Dept 2023], lv denied 40 NY3d 933 [2023]).

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