People v. Cruz

• Decision Date: 28 September 2012
• Citation: 2012 N.Y. Slip Op. 06435,951 N.Y.S.2d 415,98 A.D.3d 1273
• Parties: The PEOPLE of the State of New York, Respondent, v. Darain CRUZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1273
951 N.Y.S.2d 415
2012 N.Y. Slip Op. 06435

The PEOPLE of the State of New York, Respondent,
v.
Darain CRUZ, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 28, 2012.

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered April 15, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree.
David P. Elkovitch, Auburn, for Defendant–Appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.

MEMORANDUM:

[98 A.D.3d 1274]Defendant appeals 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 failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea allocution was factually insufficient based on County Court's failure to obtain a waiver of the defense of mental disease or defect ( see People v. Trapp, 15 A.D.3d 916, 788 N.Y.S.2d 774,lv. denied4 N.Y.3d 891, 798 N.Y.S.2d 736, 831 N.E.2d 981). Nothing in the plea allocution raised the possibility of that defense ( cf. People v. Lopez, 71 N.Y.2d 662, 666–668, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Costanza, 244 A.D.2d 988, 989, 665 N.Y.S.2d 487), and defendant's contention therefore does not fall within the rare case exception to the preservation rule ( see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

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

CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and SCONIERS, JJ., concur.