Opinion
KA 00-02254
June 14, 2002.
Appeal from a judgment of Steuben County Court (Kehoe, J.), entered February 8, 2000, convicting defendant upon his plea of guilty of attempted burglary in the second degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (MICKELLE OLAWOYE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH (MICHAEL D. McCARTNEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant failed to move to withdraw his plea of guilty to attempted burglary in the second degree (Penal Law § 110.00, 140.25) or to vacate the judgment of conviction and thus failed to preserve for our review his contention that his plea was not knowing and voluntary ( see People v. Lopez, 71 N.Y.2d 662, 665; People v. Swank, 278 A.D.2d 861, lv denied 96 N.Y.2d 807). In any event, defendant's contention is without merit. Defendant was afforded an opportunity to withdraw his plea of guilty when County Court realized prior to sentencing that defendant was a second violent felony offender and that the agreed-upon sentence therefore was illegal. However, defendant decided not to withdraw his plea after the People agreed to forego additional prosecution of defendant for other alleged criminal conduct and the court agreed to sentence defendant to a determinate term of incarceration of seven years if defendant did not withdraw the plea. In addition, when the court became aware of an alleged statement by defendant to the effect that he was pleading guilty to a crime that he did not commit but "getting off" for other crimes that he had committed, the court conducted further inquiry to ensure that the plea was knowing and voluntary ( see Lopez, 71 N.Y.2d at 666). Even assuming, arguendo, that the further contention of defendant that he was denied effective assistance of counsel survives his plea of guilty ( see People v. Brown, 284 A.D.2d 904, lv denied 96 N.Y.2d 916), we conclude that defendant's contention lacks merit ( see generally People v. Baldi, 54 N.Y.2d 137, 147). The bargained-for sentence is not unduly harsh or severe.