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

570
KA 11-02324
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JOEY D. BARR, ALSO KNOWN AS JOSEPHINE BARR,
DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (ROBERT TUCKER OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment   of the Ontario County Court (Frederick G.
Reed, A.J.), rendered April   27, 2011. The judgment convicted
defendant, upon her plea of   guilty, of attempted criminal sale of a
controlled substance in the   second degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of attempted criminal sale of a controlled
substance in the second degree (Penal Law §§ 110.00, 220.41 [5]).
Defendant contends that the prosecutor’s failure to instruct the grand
jury as to a lesser offense of unlawful sale of an imitation
controlled substance (Public Health Law § 3383 [2]) impaired the
fundamental integrity of the grand jury proceeding, requiring
dismissal of the indictment. By pleading guilty, defendant forfeited
her right to seek our review of that contention (see generally People
v Hansen, 95 NY2d 227, 231-232; People v Palo, 299 AD2d 871, 871, lv
denied 99 NY2d 618). Defendant also failed to preserve that
contention for our review (see People v Davis, 87 AD3d 1332, 1333, lv
denied 18 NY3d 858, reconsideration denied 18 NY3d 956; People v
Estes, 202 AD2d 516, 517, lv denied 84 NY2d 825). In any event,
defendant’s contention is without merit inasmuch as the People are
“free to seek an indictment for the highest crime the evidence will
support” (People v Valles, 62 NY2d 36, 39).




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