| People v Gimenez |
| 2009 NY Slip Op 00929 [59 AD3d 1088] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdwinGimenez, Appellant. |
—[*1] Edwin Gimenez, defendant-appellant pro se. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedDecember 6, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond 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 ofmurder in the second degree (Penal Law § 125.25 [1]). Contrary to the contention ofdefendant, his waiver of the right to appeal was knowingly, intelligently and voluntarily entered(see People v Lopez, 6 NY3d248, 256 [2006]; People vGilbert, 17 AD3d 1164 [2005], lv denied 5 NY3d 762 [2005]). That validwaiver encompasses defendant's challenge to the severity of the sentence (see People vHidalgo, 91 NY2d 733, 737 [1998]). Although the further contention of defendant that hisplea was not knowingly, voluntarily, and intelligently entered survives his waiver of the right toappeal, defendant failed to preserve that contention for our review inasmuch as he failed to moveto withdraw the plea or to vacate the judgment of conviction (see People v Carmody, 53 AD3d 1048 [2008], lv denied11 NY3d 830 [2008]; People vAdams, 26 AD3d 597 [2006], lv denied 7 NY3d 751 [2006]; People vBeekman, 280 AD2d 784 [2001], lv denied 96 NY2d 780 [2001]). In any event,defendant's contention lacks merit (see generally People v Garcia, 92 NY2d 869, 870[1998]). Any challenge by defendant to the voluntariness of the plea based on alleged coercion isbelied by defendant's responses to County Court's questions during the plea colloquy (see People v Nichols, 21 AD3d1273, 1274 [2005], lv denied 6 NY3d 757 [2005]). The contention of defendant inhis main and pro se supplemental briefs that he was denied effective assistance of counselsurvives his guilty plea and waiver of the right to appeal to the extent that he contends that theplea was infected by the alleged ineffective assistance (see Nichols, 21 AD3d at 1274;cf. People v Burke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]). Wenevertheless reject that contention (see generally People v Ford, 86 NY2d 397, 404[1995]; People v Baldi, 54 NY2d 137, 147 [1981]). We have considered the remainingcontentions of defendant in his pro se supplemental brief and conclude that they are withoutmerit. Present—Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.