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People v. Rivera

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 1, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSÉ RIVERA, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Robert Stolz, J.), rendered February 25, 2008, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 years' probation, 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.

Tom, J.P., Andrias, Nardelli, DeGrasse, Freedman, JJ.

314/07

Since the claims defendant raises on appeal were not raised in his motion to withdraw his guilty plea, those claims are unpreserved (see People v Lopez, 71 NY2d 662, 665 [1988]), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits (see People v Frederick, 45 NY2d 520 [1978]). Neither defendant nor his attorney stated any legal basis for withdrawal of the plea, and both declined the court's offer to be heard further. Contrary to defendant's suggestion, it was not the function of the court to attempt to guess what grounds might support the motion.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091001

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