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

597
KA 10-02122
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

SHAUN K. ELLIOTT, DEFENDANT-APPELLANT.


LEONARD, CURLEY & WALSH, PLLC, ROME (MICHAEL W. ARTHUR OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO,
ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Lewis County Court (Charles C.
Merrell, J.), rendered July 9, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third 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 sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]), defendant contends that County Court
erred in accepting his Alford plea because the record lacked the
requisite “strong evidence of actual guilt” to support his plea. That
contention survives his waiver of the right to appeal to the extent
that it implicates the voluntariness of the plea (see People v Dash,
74 AD3d 1859, 1860, lv denied 15 NY3d 892; People v Dille, 21 AD3d
1298, 1298, lv denied 5 NY3d 882). By failing to move to withdraw the
plea or vacate the judgment of conviction on the ground that the
record lacked the requisite “strong evidence of actual guilt,”
however, defendant failed to preserve his contention for our review
(see Dille, 21 AD3d at 1298; People v Ebert, 15 AD3d 781, 782), and
this case does not fall within the narrow exception to the
preservation requirement (see People v Lopez, 71 NY2d 662, 666; Dille,
21 AD3d at 1298). In any event, we conclude that “the record
establishes that defendant’s Alford plea was the product of a
voluntary and rational choice, and the record . . . contains strong
evidence of actual guilt” (Dash, 74 AD3d at 1860 [internal quotation
marks omitted]).


Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
