| People v Dean |
| 2008 NY Slip Op 01209 [48 AD3d 1244] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William M.Dean, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered July 20,2004. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the thirddegree (two counts), criminal possession of stolen property in the third degree, criminalpossession of a forged instrument in the second degree (two counts), attempted grand larceny inthe third degree, falsifying business records in the first degree, petit larceny (two counts),attempted grand larceny in the fourth degree, scheme to defraud in the first degree, grand larcenyin the fourth degree, issuing a bad check (nine counts) and tampering with a witness in the fourthdegree.
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 various counts arising out of, inter alia, his theft of property. Contrary to thecontention of defendant, the record of the plea colloquy establishes that he knowingly,intelligently and voluntarily waived his right to appeal (see People v Tantao, 41 AD3d 1274 [2007], lv denied 9NY3d 882 [2007]). "County Court was 'not required to engage in any particular litany' in order toobtain a valid waiver of the right to appeal" (id. at 1274-1275, quoting People vMoissett, 76 NY2d 909, 910 [1990]). The valid waiver by defendant of the right to appealencompasses his challenges to the court's suppression ruling (see People v Kemp, 94NY2d 831, 833 [1999]; People vGilbert, 17 AD3d 1164 [2005], lv denied 5 NY3d 762 [2005]), and the court'srefusal to sever the indictment (see People v Jefferson, 161 AD2d 898 [1990], lvdenied 76 NY2d 790 [1990]). The challenge by defendant to the factual sufficiency of theplea allocution also does not survive his valid waiver of the right to appeal (see People v Collins, 45 AD3d1472 [2007]) and, in any event, by failing to move to withdraw the plea or to vacate thejudgment of conviction, defendant failed to preserve that challenge for our review (seeid.; People v Hamilton, 45AD3d 1396 [2007]). Although defendant further contends that he was denied effectiveassistance of counsel, that contention does not survive his guilty plea or his waiver of the right toappeal because there was no showing " 'that the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of his attorney['s]allegedly poor performance' " (People vLeonard, 37 AD3d 1148, 1149 [2007], lv denied 8 NY3d 947 [2007]). Finally,the bargained-for sentence is not unduly harsh or severe. Present—Scudder, P.J.,Martoche, Smith, Green and Gorski, JJ.