
    The People of the State of New York, Respondent, v James J. Birmingham, Appellant.
    [847 NYS2d 887]
   Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered March 16, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

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 him, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v Lopez, 71 NY2d 662, 665 [1988]; see also People v Johnson, 82 NY2d 683, 685 [1993]). Contrary to defendant’s contention, this case does not fall within the rare exception to the preservation requirement (see Lopez, 71 NY2d at 666). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Pine, JJ.  