People v. Fontanez

Appellate Division of the Supreme Court of New York

People v. Fontanez

19 A.D.3d 1070, 796 N.Y.S.2d 280, 2005 N.Y. App. Div. LEXIS 6232

Appellate Division of the Supreme Court of the State of New York·Decided June 10, 2005·Published·Cited by 6 cases

Opinion

Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered August 18, 2003. The judgment revoked defendant’s probation and imposed a sentence of imprisonment.

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

Memorandum: Defendant appeals from a judgment revoking his probation and sentencing him to an indeterminate term of incarceration of 1 to 3 years based upon his underlying conviction of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). By failing to move to withdraw his admission to the violation of probation or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the admission was not voluntary (see

[1071] People v Benson, 6 AD3d 1173 [2004], lv denied 3 NY3d 636 [2004]; see generally People v Lopez, 71 NY2d 662, 665 [1988]). This case does not fall within the narrow exception to the preservation doctrine set forth in Lopez (71 NY2d at 666). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Scudder, Gorski, Martoche and Lawton, JJ.

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Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered August 18, 2003. The judgment revoked defendant’s probation and imposed a sentence of imprisonment.

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

Memorandum: Defendant appeals from a judgment revoking his probation and sentencing him to an indeterminate term of incarceration of 1 to 3 years based upon his underlying conviction of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). By failing to move to withdraw his admission to the violation of probation or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that the admission was not voluntary (see

[1071] People v Benson, 6 AD3d 1173 [2004], lv denied 3 NY3d 636 [2004]; see generally People v Lopez, 71 NY2d 662, 665 [1988]). This case does not fall within the narrow exception to the preservation doctrine set forth in Lopez (71 NY2d at 666). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Scudder, Gorski, Martoche and Lawton, JJ.

People v. Fontanez, 19 A.D.3d 1070, 796 N.Y.S.2d 280, 2005 N.Y. App. Div. LEXIS 6232 (N.Y. Ct. App. 2005).

Pincite

19 A.D.3d 1070 (People v. Fontanez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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