Opinion
No. KA 09-00532.
June 11, 2010.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered March 3, 2008. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree and burglary in the second degree.
JAMES L. DOWSEY, III, WEST VALLEY, FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
Present — Centra, J.P., Peradotto, Carni, Lindley and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25) and burglary in the second degree (§ 140.25 [2]). Although defendant is correct that his challenge to the voluntariness of his plea survives his waiver of the right to appeal, defendant failed to preserve that challenge for our review because he failed to move to withdraw the plea or to vacate the judgment of conviction ( see People v Connolly, 70 AD3d 1510, 1511). Contrary to the contention of defendant, his use of prescription medication does not bring this case within the narrow exception to the preservation doctrine inasmuch as nothing in the plea allocution "cast[] significant doubt upon . . . defendant's guilt or otherwise call[ed] into question the voluntariness of the plea" ( People v Lopez, 71 NY2d 662, 666). To the extent that the contention of defendant that he was denied effective assistance of counsel survives the plea and his waiver of the right to appeal ( see People v Santos, 37 AD3d 1141, lv denied 8 NY3d 950), we conclude that it is without merit ( see generally People v Ford, 86 NY2d 397, 404).