PEOPLE v. SMITH (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered January 17, 2017.  The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.

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

Memorandum:  On appeal 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] ), defendant contends that his plea was not knowing, voluntary and intelligent because the prosecutor, eight months before the plea, incorrectly stated that defendant could be sentenced as a persistent felony offender (cf.  People v. Boykins, 161 A.D.3d 183, 184–85, 75 N.Y.S.3d 386, 2018 N.Y. Slip Op. 02919, *2–3, 2018 WL 1994505 [Apr. 27, 2018] [4th Dept. 2018] ).  Defendant's contention is not preserved for our review inasmuch as he “did not move to withdraw the plea or to vacate the judgment of conviction on [the] ground” now raised on appeal (People v. Brown, 151 A.D.3d 1951, 1952, 59 N.Y.S.3d 227 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017];  see People v. Gast, 114 A.D.3d 1270, 1270, 980 N.Y.S.2d 221 [4th Dept. 2014], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014] ).  In any event, that contention is without merit (see People v. Johnson, 24 A.D.3d 1259, 1259, 808 N.Y.S.2d 515 [4th Dept. 2005], lv denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006];  see also People v. Morrison, 78 A.D.3d 1615, 1616, 911 N.Y.S.2d 541 [4th Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ).