Opinion
254 KA 17–01281
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Adam C. SMITH, Defendant–Appellant.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT–APPELLANT. ADAM C. SMITH, DEFENDANT–APPELLANT PRO SE. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT–APPELLANT.
ADAM C. SMITH, DEFENDANT–APPELLANT PRO SE.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW,
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal 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] ), defendant contends in his main brief that the plea was not knowingly, intelligently, or voluntarily entered. Defendant failed to preserve his contention for our review because he did not move to withdraw his plea or to vacate the judgment of conviction on that ground, and this case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).
Defendant further contends in his main and pro se supplemental briefs that he received ineffective assistance of counsel. Contrary to the People's assertion, defendant was not required to preserve that contention by moving to withdraw his plea or to vacate the judgment of conviction on that ground (see generally People v. Irby , 158 A.D.3d 1050, 1051, 70 N.Y.S.3d 687 [4th Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ; People v. Long , 151 A.D.3d 1886, 1886, 58 N.Y.S.3d 788 [4th Dept. 2017] ). Nevertheless, that contention "does not survive his plea ... inasmuch as defendant failed to demonstrate that the plea bargaining process was infected by the allegedly ineffective assistance or that he entered the plea because of defense counsel's allegedly poor performance" ( People v. Alsaifullah , 162 A.D.3d 1483, 1485–1486, 77 N.Y.S.3d 811 [4th Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] ; see People v. Ware , 159 A.D.3d 1401, 1402, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ).
Finally, we have considered the remaining contentions in defendant's pro se supplemental brief, and we conclude that none warrants reversal or modification of the judgment.