           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
109
KA 09-00835
PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

HECTOR R. CRUZ, DEFENDANT-APPELLANT.


ROBERT TUCKER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered April 3, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the fourth degree (three counts), criminal sale of a
controlled substance in the third degree, and criminal possession of a
controlled substance in the fifth degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, criminal sale of a controlled substance
in the third degree (Penal Law § 220.39 [1]), defendant contends that
his plea was not voluntarily entered inasmuch as he entered the plea
because of the length of his pre-plea incarceration and his desire to
obtain medical treatment in a state prison. “[D]efendant failed to
preserve that challenge for our review by moving to withdraw his plea
or [raising that ground in his motion to] vacate the judgment of
conviction” (People v Cloyd, 78 AD3d 1669, ___). We reject
defendant’s contention that this is one of those rare cases in which
the exception to the preservation requirement applies (see People v
Lopez, 71 NY2d 662, 666). The record establishes that County Court,
“when confronted with statements casting significant doubt upon [the
voluntariness of the plea], properly conducted further inquiry to
ensure that [the] plea was . . . voluntary” (id. at 667-668; see
People v High, 46 AD3d 1435, lv denied 10 NY3d 812). The sentence is
not unduly harsh or severe.




Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
