PEOPLE v. BARRA (2007)

Defendant was convicted upon his plea of guilty of driving while ability impaired by drugs (Vehicle and Traffic Law § 1192[4] ) and was sentenced to a term of probation.   He subsequently admitted that he violated a condition of probation and now appeals from a judgment revoking his sentence of probation and imposing a sentence of imprisonment.   Defendant failed to preserve for our review his contention that the admission was not voluntary inasmuch as he failed to move to withdraw his admission to the violation of probation or to vacate the judgment revoking his sentence of probation on that ground (see People v. Fontanez, 19 A.D.3d 1070, 1070-1071, 796 N.Y.S.2d 280, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669), and this case does not fall within the narrow exception to the preservation doctrine (see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  see Fontanez, 19 A.D.3d at 1071, 796 N.Y.S.2d 280).   To the extent that the contention of defendant that he was denied effective assistance of counsel survives his admission, we conclude that defendant failed to preserve his contention for our review (see People v. Fairman, 38 A.D.3d 1346, 832 N.Y.S.2d 703, lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200).   In any event, defendant's contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: