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

928
KA 11-02031
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DARAIN CRUZ, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered April 15, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted promoting prison
contraband in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted promoting prison contraband in
the first degree (Penal Law §§ 110.00, 205.25 [2]). Defendant failed
to move to withdraw his plea or to vacate the judgment of conviction
and thus failed to preserve for our review his contention that the
plea allocution was factually insufficient based on County Court’s
failure to obtain a waiver of the defense of mental disease or defect
(see People v Trapp, 15 AD3d 916, lv denied 4 NY3d 891). Nothing in
the plea allocution raised the possibility of that defense (cf. People
v Lopez, 71 NY2d 662, 666-668; People v Costanza, 244 AD2d 988, 989),
and defendant’s contention therefore does not fall within the rare
case exception to the preservation rule (see Lopez, 71 NY2d at 666).




Entered:   September 28, 2012                      Frances E. Cafarell
                                                   Clerk of the Court
