| People v Grandin |
| 2009 NY Slip Op 04547 [63 AD3d 1604] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DevonGrandin, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedMarch 14, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of twocounts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2][b]), defendant contends that he was denied effective assistance of counsel based on hisattorney's failure to request a mental competency examination pursuant to CPL article 730. Thatcontention does not survive either the plea of guilty or the waiver by defendant of the right toappeal because he failed to demonstrate 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 vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internalquotation marks omitted]). Moreover, by failing to move to withdraw his plea of guilty or tovacate the judgment of conviction on that ground, defendant failed to preserve that contentionfor our review (see People v Hall,50 AD3d 1467, 1468-1469 [2008], lv denied 11 NY3d 789 [2008]). We reject thefurther contention of defendant that County Court abused its discretion in failing sua sponte toorder a mental competency examination (see People v Jermain, 56 AD3d 1165 [2008], lv denied 11NY3d 926 [2009]). Defendant's challenge to the severity of the sentence is encompassed by thewaiver of the right to appeal (see People v Hidalgo, 91 NY2d 733, 737 [1998]).Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Pine, JJ.