Opinion
Decided and Entered: May 25, 2000.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered June 28, 1999, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Del Atwell, Albany, for appellant.
Andrew G. Schrader, District Attorney, Malone, for respondent.
Before: Cardona, P.J., Mercure, Graffeo, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
Defendant, a prison inmate, was charged with promoting prison contraband in the first degree based upon the allegation that he possessed a folded can top measuring approximately three inches wide. Pursuant to a negotiated plea agreement, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree with the understanding that he would be sentenced as a second felony offender to a prison term of 1½ to 3 years, to run consecutive to the sentence he was then serving. As part of the guilty plea, defendant waived his right to appeal except with regard to sentencing and constitutional issues. Sentenced in accordance with the plea agreement, defendant now appeals.
Initially, although defendant's waiver of the right to appeal does not preclude his challenges to the voluntary nature of his guilty plea or to the effectiveness of his counsel (see, People v. Seaberg, 74 N.Y.2d 1, 10; People v. Chapple, ___ A.D.2d ___, ___, 704 N.Y.S.2d 163, 165), defendant's failure to move to withdraw his guilty plea or to vacate the judgment of conviction renders these arguments unpreserved for our review (see, People v. Doty, ___ A.D.2d ___, ___, 699 N.Y.S.2d 761, 762; People v. Bailey, 265 A.D.2d 731, ___, 697 N.Y.S.2d 715, 716; People v. Soto, 259 A.D.2d 904). Nevertheless, were we to review defendant's arguments, we would find them to be without merit. Notwithstanding defendant's contention to the contrary, our review of County Court's colloquy with defendant establishes that he understood the nature of the reduced charge to which he was pleading guilty and entered into the plea voluntarily (see, People v. Tenace, 256 A.D.2d 928, ___, 682 N.Y.S.2d 279, 281, lv denied 93 N.Y.2d 902). Moreover, defense counsel's failure to make certain pretrial motions did not amount to ineffective assistance of counsel in light of the advantageous plea bargain received by defendant and the lack of any additional conduct which would otherwise cast doubt on the adequacy of defense counsel's representation (see, People v. Smith, 263 A.D.2d 676, 677, lv denied 93 N.Y.2d 1027; People v. Mateo, 252 A.D.2d 821, 822, lv denied 92 N.Y.2d 927).
Mercure, Graffeo, Rose and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.