PEOPLE v. ORTEGA (2019)

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 attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16[1] ).  As an initial matter, defendant correctly contends and the People correctly concede that defendant's waiver of his right to appeal is invalid (see People v. Willis, 161 A.D.3d 1584, 1584, 77 N.Y.S.3d 259 [4th Dept. 2018];  People v. McCoy, 107 A.D.3d 1454, 1454, 967 N.Y.S.2d 309 [4th Dept. 2013], lv denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ).  Nevertheless, although defendant further contends that County Court erred in refusing to suppress physical evidence, “defendant forfeited the right to raise that suppression issue on appeal inasmuch as he pleaded guilty before the court issued a ruling thereon” (People v. Dix, 170 A.D.3d 1575, 1576, 95 N.Y.S.3d 693 [4th Dept. 2019], lv. denied 33 N.Y.3d 1030, 102 N.Y.S.3d 541, 126 N.E.3d 191 [2019];  see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986];  People v. Rodgers, 162 A.D.3d 1500, 1501, 78 N.Y.S.3d 828 [4th Dept. 2018], lv. denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018] ).

Defendant failed to preserve his contention that his plea was not knowingly, intelligently, and voluntarily entered because he failed to move to withdraw the plea or vacate the judgment of conviction (see People v. Peter, 141 A.D.3d 1115, 1116, 33 N.Y.S.3d 918 [4th Dept. 2016];  see generally People v. Williams, 27 N.Y.3d 212, 219, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ).  We reject defendant's contention that this case falls 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 [1988];  People v. Carlisle, 120 A.D.3d 1607, 1607–1608, 992 N.Y.S.2d 828 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).  Contrary to defendant's further contention, the sentence is not unduly harsh or severe.

We agree with defendant and the People correctly concede, however, that the sentence and commitment form should be amended because it incorrectly reflects that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Oberdorf, 136 A.D.3d 1291, 1292–1293, 24 N.Y.S.3d 545 [4th Dept. 2016], lv denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ).