| People v Utter |
| 2008 NY Slip Op 02356 [49 AD3d 1272] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York, Respondent, v Steven N. Utter, Appellant. |
—[*1]
R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), for
respondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered February 15, 2006. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (two counts).
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 two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1], [9]). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution by failing to move to withdraw the plea or to vacate the judgment of conviction (see People v Lopez, 71 NY2d 662, 665 [1988]), and we reject his contention that this case falls within the narrow exception to the preservation doctrine (see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995]; Lopez, 71 NY2d at 666). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.