People v. Barr

107 A.D.3d 1458, 965 N.Y.S.2d 911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2013
• Status: Published

Opinion

Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), rendered April 27, 2011. The judgment convicted defendant, upon her plea of guilty, of attempted criminal sale of a controlled substance in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of attempted criminal sale of a controlled substance in the second degree (Penal Law §§ 110.00, 220.41 [5]). Defendant contends that the prosecutor’s failure to instruct the grand jury as to a lesser offense of unlawful sale of an imitation controlled substance (Public Health Law § 3383 [2]) impaired the fundamental integrity of the grand jury proceeding, requiring dismissal of the indictment. By pleading guilty, defendant forfeited her right to seek our review of that contention (see generally People v Hansen, 95 NY2d 227, 231-232 [2000]; People v Palo, 299 AD2d 871, 871 [2002], lv denied 99 NY2d 618 [2003]). Defendant also failed to preserve that contention for our review (see People v Davis, 87 AD3d 1332, 1333 [2011], lv denied 18 NY3d 858 [2011], reconsideration denied 18 NY3d 956 [2011]; People v Estes, 202 AD2d 516, 517 [1994], lv denied 84 NY2d 825 [1994]). In any event, defendant’s contention is without merit inasmuch as the People are “free to seek an indictment for the highest crime the evidence will support” (People v Valles, 62 NY2d 36, 39 [1984]). Present — Scudder, P.J., Smith, Centra and Lindley, JJ.