People v. Sanabria, 100348.

• Decision Date: 20 September 2007
• Docket Number: 100348.
• Citation: 2007 NY Slip Op 06769,842 N.Y.S.2d 107,43 A.D.3d 1228
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEVEN SANABRIA, Appellant.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 1228

842 N.Y.S.2d 107

2007 NY Slip Op 06769

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEVEN SANABRIA, Appellant.

100348.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided September 20, 2007.

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered May 26, 2006, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Peters, J.

While he was incarcerated, defendant was found to be in possession of a modified razor. As a result, he was charged in an indictment with two counts of promoting prison contraband in the first degree. In satisfaction of the charges, he pleaded guilty to attempted promoting prison contraband in the first degree. In accordance with the plea, he was sentenced as a second felony offender to 1½ to 3 years in prison, to run consecutive to the sentence he was then serving. Defendant now appeals.

Inasmuch as defendant did not make a motion to withdraw his plea or to vacate the judgment of conviction, he has not preserved his challenge to the factual sufficiency of the plea allocution (see People v Masters, 36 AD3d 959, 960 [2007], lv denied 8 NY3d 925 [2007]; People v Benton, 31 AD3d 1063 [2006]). He claims, however, that an exception to the preservation requirement exists because he made a statement negating an essential element of the crime. Defendant's claim is not substantiated by the record. During the plea colloquy, defendant answered in the affirmative that he possessed a modified razor while incarcerated and was aware that it was dangerous contraband. He did not make any statements drawing his guilt into question and was not required to recite the underlying facts of the crime (see People v Bagley, 34 AD3d 992, 993 [2006], lv denied 8 NY3d 878 [2007]). Consequently, the exception to the preservation requirement is inapplicable (see People v Palmer, 36 AD3d 1015, 1015 [2007], lv denied 8 NY3d 989 [2007]; People v Alexander, 31 AD3d 885, 886 [2006]).

Mercure, J.P., Spain, Carpinello and Kane, JJ., concur.

Ordered that the judgment is affirmed.