People
v.
Burney

Supreme Court, Appellate Division, Fourth Department, New York.Mar 23, 2012
940 N.Y.S.2d 507 (N.Y. App. Div. 2012)
940 N.Y.S.2d 50793 A.D.3d 13342012 N.Y. Slip Op. 2225

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2012-03-23

The PEOPLE of the State of New York, Respondent, v. Carmen C. BURNEY, Defendant–Appellant.

Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered January 31, 2011. The judgment convicted defendant, upon her plea of guilty, of attempted assault in the second degree.James L. Dowsey, III, Ellicottville, for defendant-appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for respondent.


Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered January 31, 2011. The judgment convicted defendant, upon her plea of guilty, of attempted assault in the second degree.James L. Dowsey, III, Ellicottville, for defendant-appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting her upon her plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2] ). Contrary to defendant's contention, the record shows that she entered a valid waiver of indictment, and freely and voluntarily consented to be prosecuted by way of a superior court information ( see CPL 195.10, 195.20; see generally People v. Davis, 84 A.D.3d 1645, 1646, 923 N.Y.S.2d 364, lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95; People v. McKenzie, 51 A.D.3d 823, 856 N.Y.S.2d 863). Although the contention of defendant that her guilty plea was not knowingly, voluntarily and intelligently entered survives her waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review ( see People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449; People v. Harrison, 4 A.D.3d 825, 771 N.Y.S.2d 448, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919). Defendant's further contention that she was denied effective assistance of counsel does not survive either the plea of guilty or the waiver by defendant of the right to appeal because she failed to demonstrate that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [her] attorney['s] allegedly poor performance” ( People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814, lv. denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [internal quotation marks omitted] ).

*508 It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

SCUDDER, P.J., CENTRA, CARNI, LINDLEY, and MARTOCHE, JJ., concur.