The People of the State of New York, Respondent, v. Samuel Rojas, Defendant–Appellant. (2018)

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Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered February 11, 2015, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of six months, unanimously affirmed.

Defendant's challenge to his plea is unpreserved, and we decline to review it in the interest of justice.  The narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666 [1988] ) does not apply, because “[d]efendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a ․ defense” (People v. Pastor, 28 NY3d 1089, 1090–1091 [2016] ).  Defendant asserts that he made an exculpatory statement when he was interviewed in connection with a presentence report.  While such an interview may be conducted in anticipation of sentencing, it is not part of the actual sentencing proceeding, which occurs in open court.  We have repeatedly held that the Lopez exception does not apply to statements in presentence reports.  We so held in Pastor (136 AD3d 493, 493 [1st Dept 2016] ), which the Court of Appeals affirmed.

As an alternative holding, we find no basis on which to vacate the plea.  As noted, the sentencing court had no obligation to conduct a sua sponte inquiry into defendant's out-of-court statement.  Moreover, the allegedly exculpatory statement about how defendant acquired the drugs at issue did not directly negate the element of intent to sell.

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CLERK