Opinion
2012-11-16
Thomas J. Eoannou, Buffalo (Jeremy D. Schwartz of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
Thomas J. Eoannou, Buffalo (Jeremy D. Schwartz of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ), defendant contends that he was denied his rights pursuant to CPL 380.50(2)(e) at sentencing. That contention is encompassed by defendant's valid waiver of the right to appeal ( see People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848,lv. denied15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054;see generally People v. Lanzara, 59 A.D.3d 936, 937, 873 N.Y.S.2d 399,lv. denied12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590). Also, defendant's contention is unpreserved for our review inasmuch as it is “ ‘addressed merely to the adequacy of the procedures [County Court] used to arrive at its sentencing determination,’ ” and defendant failed to raise it in a timely manner before the court ( People v. Daniqua S.D., 92 A.D.3d 1226, 1227, 937 N.Y.S.2d 907, quoting People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108).
Defendant's contention that he was denied effective assistance of counsel does not survive his plea or his valid waiver of the right to appeal because defendant “failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ ” ( People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915;see People v. Rizek [appeal No. 1], 64 A.D.3d 1180, 1180, 881 N.Y.S.2d 752,lv. denied13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101). In any event, defendant's contention lacks merit inasmuch as he “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). Finally, defendant failed to preserve for our review his contention that the court erred in failing to recuse itself ( see People v. Pett, 74 A.D.3d 1891, 1892, 903 N.Y.S.2d 639; People v. Lebron, 305 A.D.2d 799, 800, 759 N.Y.S.2d 575,lv. denied100 N.Y.2d 583, 764 N.Y.S.2d 394, 796 N.E.2d 486). In any event, that contention is without merit ( see generally People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200;People v. Crane, 294 A.D.2d 867, 867, 740 N.Y.S.2d 916,lv. denied98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919;People v. Brunner, 182 A.D.2d 1123, 1123, 583 N.Y.S.2d 93,lv. denied80 N.Y.2d 828, 587 N.Y.S.2d 913, 600 N.E.2d 640).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50(5).