People v. Fairclough

Appeal by defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered December 14, 1983, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

By failing to make a motion to the court of first instance to withdraw his plea or vacate his conviction, defendant has failed to preserve for appellate review the issue of the sufficiency of his plea allocution (see, People v Hoke, 62 NY2d 1022; People v Pellegrino, 60 NY2d 636). In any event, there is no merit to defendant’s contention regarding the plea allocution. Defendant’s statements made it clear that he had no reasonable possibility of successfully raising a defense of agency (see, People v Argibay, 45 NY2d 45, 53-54). Thus, Criminal Term had no duty to make further inquiry about this possible defense before accepting defendant’s guilty plea. The allocution established the requisite element of criminal sale of a controlled substance in the second degree and defendant knowingly and intelligently pleaded guilty thereto (see, People v Harris, 61 NY2d 9).

The sentence imposed was not unduly harsh or excessive (see, People v Suitte, 90 AD2d 80; People v Kazepis, 101 AD2d 816, 817). Gibbons, J. P., Thompson, Brown and Eiber, JJ., concur.