Opinion
503 KA 19-01026
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Perry TOLBERT, Defendant-Appellant.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
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 attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25[2] ). Although defendant's sole contention that County Court abused its discretion in denying his motion to withdraw the plea survives the valid waiver of the right to appeal (see People v. Dale , 142 A.D.3d 1287, 1288, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ), we conclude based upon the record before us that his contention lacks merit (see People v. Gerena , 174 A.D.3d 1428, 1429-1430, 106 N.Y.S.3d 477 [4th Dept. 2019], lv denied 34 N.Y.3d 981, 113 N.Y.S.3d 633, 137 N.E.3d 3 [2019] ; see generally People v. Blount , 90 N.Y.2d 998, 999, 665 N.Y.S.2d 626, 688 N.E.2d 500 [1997] ).