People v. Naylor

6 A.D.3d 1187, 775 N.Y.S.2d 686, 2004 N.Y. App. Div. LEXIS 6172

Opinion

Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered September 17, 2002. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (two counts).

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). Defendant failed to preserve for our review his contention that his guilty plea was not knowingly, voluntarily and intelligently entered (see People v Ferguson, 192 AD2d 800 [1993], lv denied 82 NY2d 717 [1993]). In any event, we conclude that defendant’s contention is without merit (see People v Seaberg, 74 NY2d 1, 10-11 [1989]). Because defendant declined to withdraw his guilty plea when given the opportunity to do so, defendant did not preserve for our review his contentions regarding his enhanced sentence (see People v Perry, 252 AD2d 990 [1998], lv denied 92 NY2d 929 [1998]), and we decline to exercise our power to address those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is neither unduly harsh nor severe. Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.