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People v. Barr

Supreme Court of New York, Fourth Department

June 7, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOEY D. BARR, ALSO KNOWN AS JOSEPHINE BARR, DEFENDANT-APPELLANT.

Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), rendered April 27, 2011. The judgment convicted defendant, upon her plea of guilty, of attempted criminal sale of a controlled substance in the second degree.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (ROBERT TUCKER OF COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE OF COUNSEL), FOR RESPONDENT.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

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

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of attempted criminal sale of a controlled substance in the second degree (Penal Law §§ 110.00, 220.41 [5]). Defendant contends that the prosecutor's failure to instruct the grand jury as to a lesser offense of unlawful sale of an imitation controlled substance (Public Health Law § 3383 [2]) impaired the fundamental integrity of the grand jury proceeding, requiring dismissal of the indictment. By pleading guilty, defendant forfeited her right to seek our review of that contention (see generally People v Hansen, 95 N.Y.2d 227, 231-232; People v Palo, 299 A.D.2d 871, 871, lv denied 99 N.Y.2d 618). Defendant also failed to preserve that contention for our review (see People v Davis, 87 A.D.3d 1332, 1333, lv denied 18 N.Y.3d 858, reconsideration denied 18 N.Y.3d 956; People v Estes, 202 A.D.2d 516, 517, lv denied 84 N.Y.2d 825). In any event, defendant's contention is without merit inasmuch as the People are "free to seek an indictment for the highest crime the evidence will support" (People v Valles, 62 N.Y.2d 36, 39).


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