PEOPLE v. SANABRIA (2007)

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered May 26, 2006, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

While he was incarcerated, defendant was found to be in possession of a modified razor.   As a result, he was charged in an indictment with two counts of promoting prison contraband in the first degree.   In satisfaction of the charges, he pleaded guilty to attempted promoting prison contraband in the first degree.   In accordance with the plea, he was sentenced as a second felony offender to 1 1/212 to 3 years in prison, to run consecutive to the sentence he was then serving.   Defendant now appeals.

 Inasmuch as defendant did not make a motion to withdraw his plea or to vacate the judgment of conviction, he has not preserved his challenge to the factual sufficiency of the plea allocution (see People v. Masters, 36 A.D.3d 959, 960, 826 N.Y.S.2d 835 [2007], lv. denied 8 N.Y.3d 925, 834 N.Y.S.2d 515, 866 N.E.2d 461 [2007];  People v. Benton, 31 A.D.3d 1063, 818 N.Y.S.2d 497 [2006] ).   He claims, however, that an exception to the preservation requirement exists because he made a statement negating an essential element of the crime.   Defendant's claim is not substantiated by the record.   During the plea colloquy, defendant answered in the affirmative that he possessed a modified razor while incarcerated and was aware that it was dangerous contraband.   He did not make any statements drawing his guilt into question and was not required to recite the underlying facts of the crime (see People v. Bagley, 34 A.D.3d 992, 993, 824 N.Y.S.2d 457 [2006], lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ).   Consequently, the exception to the preservation requirement is inapplicable (see People v. Palmer, 36 A.D.3d 1015, 1015, 826 N.Y.S.2d 528 [2007], lv. denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007];  People v. Alexander, 31 A.D.3d 885, 886, 817 N.Y.S.2d 786 [2006] ).

ORDERED that the judgment is affirmed.

PETERS, J.

MERCURE, J.P., SPAIN, CARPINELLO and KANE, JJ., concur.