Opinion
KA 01-00834
February 1, 2002.
Appeal from a judgment of Ontario County Court (Doran, J.), entered March 23, 2001, convicting defendant upon her plea of guilty of, inter alia, criminal sale of a controlled substance in the third degree (four counts).
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, SCUDDER, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting her, upon her plea of guilty, of three counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and three counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and sentencing her as a second felony offender to the minimum term of incarceration of 4½ to 9 years. Contrary to the contention of defendant, County Court properly arraigned her upon the second felony information. When the court asked defendant whether she wished to controvert any of the facts contained in the second felony information, defendant stated that she did not wish to do so, and thus those facts are deemed admitted by her ( see, CPL 400.21). Defendant contends for the first time on appeal that the mandatory sentencing provisions for drug crimes constitute cruel and unusual punishment and therefore failed to preserve that contention for our review ( see, CPL 470.05; People v. Rosado, 123 A.D.2d 334, 335, lv denied 68 N.Y.2d 1003).