        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

33
KA 12-02108
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICKEY A. DARLING, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (JOSEPH M. CALIMERI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered September 10, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the fourth 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 criminal possession of a controlled substance in the
fourth degree (Penal Law § 220.09 [1]), defendant contends that County
Court failed to ensure that he had a full understanding of his plea,
and that his plea therefore was not knowing, voluntary and
intelligent. Defendant did not move to withdraw the plea or to vacate
the judgment of conviction and thus failed to preserve that contention
for our review (see People v Russell, 55 AD3d 1314, 1314-1315, lv
denied 11 NY3d 930; People v Harrison, 4 AD3d 825, 826, lv denied 2
NY3d 740). Furthermore, the narrow exception to the preservation rule
does not apply because defendant said nothing during the plea colloquy
that “clearly casts significant doubt upon [his] guilt or otherwise
calls into question the voluntariness of the plea” (People v Lopez, 71
NY2d 662, 666; see People v Bishop, 115 AD3d 1243, 1244, lv denied 23
NY3d 1018). In any event, the record demonstrates that defendant’s
plea was knowing, voluntary and intelligent (see People v Cox, 111
AD3d 1310, 1310, lv denied 23 NY3d 1025; People v Weakfall, 108 AD3d
1115, 1116, lv denied 21 NY3d 1078; see generally People v Seeber, 4
NY3d 780, 781-782). Contrary to defendant’s contention, “there is no
requirement that defendant recite the underlying facts of the crime to
which he is pleading guilty” (People v Bailey, 49 AD3d 1258, 1259, lv
denied 10 NY3d 932).
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                                                            KA 12-02108

     The sentence is not unduly harsh or severe.




Entered:   February 6, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
