People v. Martinez

245 A.D.2d 177, 666 N.Y.S.2d 189, 1997 N.Y. App. Div. LEXIS 13143

Opinion

—Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered January 16, 1996, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

Defendant’s claim that his plea should be vacated as factually insufficient due to the People’s failure to produce a lab report confirming the seized substance to be heroin has not been preserved for appellate review (People v Toxey, 86 NY2d 725; People v Lopez, 71 NY2d 662), and we decline to review it in the interest of justice. In any event, defendant acknowledged, during his allocution, that he attempted to sell heroin. Defendant’s claim is essentially a challenge to the sufficiency of the evidence against him and, as such, was waived by entry of a guilty plea (People v Flores, 237 AD2d 128, lv denied 90 NY2d 857). We would further note that a laboratory analysis was required for the indictment. Concur—Ellerin, J. P., Wallach, Mazzarelli, Andrias and Colabella, JJ.