| People v Daniels |
| 2009 NY Slip Op 00753 [59 AD3d 943] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DamienDaniels, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Jamie C. Gallagher of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedSeptember 19, 2007. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the first degree.
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 ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). Thechallenge by defendant to the factual sufficiency of the plea allocution is encompassed by hisvalid waiver of the right to appeal (seePeople v Thomas, 56 AD3d 1240 [2008]). The contention of defendant that his plea wasnot knowingly, intelligently and voluntarily entered because he failed to recite the elements ofthe crime is actually an additional challenge to the factual sufficiency of the plea allocution, andthat challenge also does not survive his valid waiver of the right to appeal (see People v Ramos, 56 AD3d1180 [2008]). In any event, defendant failed to preserve those challenges for our review byfailing to move to withdraw the plea or to vacate the judgment of conviction (see People vLopez, 71 NY2d 662, 665 [1988]; People v Bailey, 49 AD3d 1258, 1259 [2008], lv denied 10NY3d 932 [2008]).
To the extent that the further contention of defendant that he was denied effective assistanceof counsel survives his plea and valid waiver of the right to appeal (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), we conclude that his contention lacksmerit (see generally People v Ford, 86 NY2d 397, 404 [1995]). Prior to entering his plea,defendant acknowledged that he had discussed the plea with defense counsel, that he wassatisfied with defense counsel's representation, and that no one had influenced his decision toenter the plea. Present—Smith, J.P., Centra, Peradotto and Gorski, JJ.