Opinion
KA 02-00625
March 21, 2003.
Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered February 11, 2002, convicting defendant upon his plea of guilty of, inter alia, felony driving while intoxicated.
SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.
EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, 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:
On appeal from a judgment convicting him upon his plea of guilty of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law § 1192; § 1193 [1] [d] [4] [ii]), defendant contends that he was denied effective assistance of counsel by defense counsel's failure to negotiate parole supervision to provide for treatment of his alcoholism (see CPL 410.91). Even assuming, arguendo, that the contention of defendant was not forfeited by his guilty plea (see People v. Brown, 284 A.D.2d 904, 905, lv denied 96 N.Y.2d 916; People v. Burke, 256 A.D.2d 1244, lv denied 93 N.Y.2d 851) and survives the waiver of his right to appeal (see People v. Perillo, 300 A.D.2d 1097 [Dec. 30, 2002]), we conclude that his contention is without merit. Defendant was not convicted of a "specified offense" (410.91 [2]; see 410.91 [5]) and therefore is not eligible for that parole supervision. The waiver by defendant of the right to appeal encompasses his contention that the sentence is unduly harsh and severe (see People v. Lococo, 92 N.Y.2d 825, 827).