NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
June 30, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DONNELL THOMAS, ALSO KNOWN AS RAYMOND RODRIGUEZ, DEFENDANT-APPELLANT.
Judgment, Supreme Court, Bronx County (John P. Collins, J.), rendered September 6, 2007, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Catterson, DeGrasse, Abdus-Salaam, JJ.
Defendant's unpreserved challenges to the validity of his plea do not come within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662 ), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The record establishes that defendant knowingly, intelligently, and voluntarily pleaded guilty (see People v Fiumefreddo, 82 NY2d 536, 543 ). Defendant pleaded guilty twice in this case, and the second plea differed from the first only to the extent of reducing the degree of the crime for defendant's benefit, thereby qualifying him for a more lenient sentence than the one to which he had originally agreed. The second plea proceeding validly incorporated by reference the full allocution, including defendant's rights under Boykin v Alabama (395 US 238 ), that had been conducted at the first plea proceeding.
Defendant's claim that the court should have conducted an inquiry into the circumstances of his failure to complete a drug program is also unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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