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

439
KA 10-00556
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

SUSANNE HAUKE, DEFENDANT-APPELLANT.


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

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered July 15, 2009. The judgment convicted
defendant, upon her plea of guilty, of criminal sale of a controlled
substance in the fifth degree (two counts).

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

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of two counts of criminal sale of a controlled
substance in the fifth degree (Penal Law § 220.31), defendant contends
that her monosyllabic responses to County Court’s questions cast doubt
upon the voluntariness of her plea. She further contends that the
court failed to ascertain whether she knowingly and unlawfully sold a
controlled substance and that, because she did not recite the elements
of the offenses, there was no assurance that she understood the nature
of the charges to which she was pleading guilty. Those contentions
are actually challenges to the factual sufficiency of the plea
allocution, and defendant failed to preserve her contentions for our
review by moving to withdraw the plea or to vacate the judgment of
conviction (see People v Lopez, 71 NY2d 662, 665; People v Jamison, 71
AD3d 1435, 1436, lv denied 14 NY3d 888; People v Bailey, 49 AD3d 1258,
lv denied 10 NY3d 932). Contrary to defendant’s further contention,
this case does not fall within the narrow exception to the
preservation requirement set forth in Lopez (71 NY2d at 666).
Finally, the sentence is not unduly harsh or severe.




Entered:    April 29, 2011                         Patricia L. Morgan
                                                   Clerk of the Court
