PEOPLE v. VANDYKE (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered August 22, 2022, convicting defendant upon her plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In full satisfaction of a four-count indictment, defendant was afforded the opportunity to plead guilty to one count of criminal sale of a controlled substance in the third degree with the understanding that she would be sentenced to one year of incarceration in the local jail and would pay $300 in restitution.  Defendant pleaded guilty in conformity with the plea agreement, and County Court thereafter imposed the agreed-upon sentence and deferred restitution until defendant's release from jail.  This appeal ensued.

We affirm.  Although couched as a challenge to the voluntariness of her plea, defendant actually is contesting the factual sufficiency thereof – noting an apparent discrepancy between the drug referenced in the indictment (fentanyl) and the drug she believed that she was selling (heroin).  In either case, defendant's arguments regarding the voluntariness and/or factual sufficiency of her plea are unpreserved for our review, as defendant did not make an appropriate postallocution motion – despite having an opportunity to do so prior to sentencing (see People v. Booth, 221 A.D.3d 1283, 1284, 200 N.Y.S.3d 501 [3d Dept. 2023];  People v. Faublas, 216 A.D.3d 1358, 1359, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023];  People v. Robert, 214 A.D.3d 1085, 1086, 184 N.Y.S.3d 488 [3d Dept. 2023], lv denied 39 N.Y.3d 1156, 190 N.Y.S.3d 699, 211 N.E.3d 1152 [2023]).  Even assuming that defendant's statement that she did not know that the drug she was selling contained fentanyl was sufficient to trigger the narrow exception to the preservation requirement, County Court thereafter “made a sufficient inquiry to establish that the plea was knowingly and voluntarily entered” (People v. Greene, 195 A.D.3d 1317, 1318, 146 N.Y.S.3d 539 [3d Dept. 2021]).  Specifically, and in response to County Court's questioning, defendant readily acknowledged that she sold “what [she] believed to be drugs” on the day in question and admitted “that the substance that [she was] selling was in fact a controlled substance,” which is all that was required of her allocution (see Penal Law §§ 220.00[5];  220.39[1];  Public Health Law § 3306).  “Having failed to express, in any way, dissatisfaction with the court's remedial action, defendant has waived any further challenge to the allocution, and thus no issue is preserved for our review” (People v. Greene, 195 A.D.3d at 1318, 146 N.Y.S.3d 539 [internal quotation marks and citations omitted];  see People v. Rodriguez, 228 A.D.3d 1179, 1180, 213 N.Y.S.3d 561 [3d Dept. 2024];  People v. McCall, 217 A.D.3d 1266, 1267, 192 N.Y.S.3d 296 [3d Dept. 2023], lv denied 40 N.Y.3d 998, 197 N.Y.S.3d 112, 219 N.E.3d 873 [2023];  cf.  People v. Dunbar, 218 A.D.3d 931, 933, 193 N.Y.S.3d 397 [3d Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023]).

ORDERED that the judgment is affirmed.

Pritzker, J.

Egan Jr., J.P., Aarons, Lynch and McShan, JJ., concur.