PEOPLE v. HALSTON (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ).   The valid waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution and, in any event, he failed to preserve that contention for our review (see People v. Spivey, 9 A.D.3d 886, 779 N.Y.S.2d 373, lv. denied 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682;  People v. Carlton, 2 A.D.3d 1353, 770 N.Y.S.2d 502, lv. denied 1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283).   Defendant's plea allocution does not fall within the narrow exception to the preservation doctrine (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Finally, although the waiver by defendant of the right to appeal does not encompass his contention that County Court failed to exercise its discretion in sentencing him (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Fehr, 303 A.D.2d 1039, 757 N.Y.S.2d 205, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417), and preservation of that contention is not required (see People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563), we nevertheless conclude that defendant's contention lacks merit.   Contrary to the contention of defendant, the court did not have discretion to sentence him pursuant to the Drug Law Reform Act ( [DLRA] L. 2004, ch. 738) because he committed the crime at issue prior to the effective date of the DLRA (see People v. Utsey, 7 N.Y.3d 398, 822 N.Y.S.2d 475, 855 N.E.2d 791).

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

MEMORANDUM: