| People v Sierra-garcia |
| 2021 NY Slip Op 03967 |
| Decided on June 17, 2021 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 17, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CARNI, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
580 KA 19-00984
v
HECTOR SIERRA-GARCIA, DEFENDANT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered February 13, 2018. The judgment convicted defendant, upon a plea of guilty, of attempted promoting prison contraband in the first 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 attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25 [2]), defendant contends that his waiver of the right to appeal is invalid and that his plea was "legally insufficient" for various reasons. Even assuming, arguendo, that the waiver of the right to appeal is invalid (see People v Smith, 191 AD3d 1243, 1244 [4th Dept 2021]), we conclude that defendant failed to preserve his substantive contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v Rosario, 188 AD3d 1678, 1678 [4th Dept 2020], lv denied 36 NY3d 1100 [2021]), and this case does not fall within the narrow exception to the preservation requirement recognized in People v Lopez (71 NY2d 662, 666 [1988]). In any event, we perceive no basis to vacate the plea.
Entered: June 17, 2021
Mark W. Bennett
Clerk of the Court