Opinion
850 KA 01-01881
July 3, 2002.
Appeal from a judgment of Onondaga County Court (Aloi, J.), entered July 23, 2001, convicting defendant upon his plea of guilty of criminal sale of a controlled substance in the fifth degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT P. RICKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: GREEN, J.P., HAYES, WISNER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
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 sale of a controlled substance in the fifth degree (Penal Law § 220.31). Defendant contends that he was denied effective assistance of counsel because he never received notice of his right to testify before the grand jury and defense counsel failed to move to dismiss the indictment on that ground. That contention does not survive defendant's plea of guilty because "[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance" ( People v. Burke, 256 A.D.2d 1244, 1244, lv denied 93 N.Y.2d 851; see People v. Remp, 294 A.D.2d 823 [May 3, 2002]; see also People v. Khan, 291 A.D.2d 898, 899). Defendant further contends that his plea of guilty was not knowingly or intelligently entered because County Court failed to advise him of certain rights during the plea colloquy. By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve that contention for our review ( see People v. Davenport, 273 A.D.2d 926, 926; see generally People v. Lopez, 71 N.Y.2d 662, 665). In any event, the record establishes that defendant's plea was knowingly and intelligently entered ( see People v. Harris, 61 N.Y.2d 9, 16-19; Davenport, 273 A.D.2d at 926). The sentence is neither unduly harsh nor severe.