Opinion
KA 01-00515
February 1, 2002.
Appeal from a judgment of Wayne County Court (Parenti, J.), entered November 3, 2000, convicting defendant upon his plea of guilty of, inter alia, sexual abuse in the first degree.
RONALD C. VALENTINE, PUBLIC DEFENDER, LYONS (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE McCORMICK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, BURNS, AND LAWTON, JJ.
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 burglary in the first degree (Penal Law § 140.30) and sexual abuse in the first degree (Penal Law § 130.65) and sentencing him as a second violent felony offender to concurrent determinate terms of incarceration, the longest of which is 18 years. Even assuming, arguendo, that the contention of defendant that he was denied effective assistance of counsel survives his guilty plea ( see, People v. Brown, 284 A.D.2d 904, 905, lv denied 96 N.Y.2d 916), we conclude that his contention lacks merit. Although the Public Defender assigned to represent defendant also appeared at the arraignment for defendant's alleged alibi witness, he then withdrew from his representation of the alleged alibi witness. Thus, we conclude that defendant was not thereby denied effective assistance of counsel ( see generally, People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 147). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution ( see, People v. Lopez, 71 N.Y.2d 662, 665; People v. Barry, 288 A.D.2d 940 [decided Nov. 9, 2001]). This case does not fall within the narrow exception to the preservation doctrine ( see, People v. Lopez, supra, at 666; People v. Wright, 288 A.D.2d 899 [decided Nov. 9, 2001]). The sentence is neither unduly harsh nor severe.