People v Miranda, 2024 NY Slip Op 06493 [233 AD3d 1524]

December 20, 2024

Appellate Division, Fourth Department

[*1]

The People of the State of New York, Respondent,

v

Dagoberto C. Miranda, Appellant.

Julie Cianca, Public Defender, Rochester (Drew R. Dubrin of counsel), for defendant-appellant.

Letitia James, Attorney General, Albany (Daniel P. Hughes of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered February 16, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third 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 criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). Although defendant retains the right to appellate review of his challenge to the voluntariness of the plea regardless of the validity of his waiver of the right to appeal ( see People v Thomas , 34 NY3d 545 , 566 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]), defendant correctly concedes that his challenge is not preserved for our review because he did not move to withdraw his guilty plea or to vacate the judgment of conviction ( see People v Edmonds , 229 AD3d 1275 , 1276 [4th Dept 2024]; People v Brown , 151 AD3d 1951 , 1952 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]). We decline to exercise our power to review defendant’s challenge as a matter of discretion in the interest of justice ( see CPL 470.15 [3] [c]; People v Cornish , 214 AD3d 1456 , 1456 [4th Dept 2023], lv denied 40 NY3d 933 [2023]). Present—Smith, J.P., Bannister, Montour, Greenwood and Keane, JJ..