| People v Zulian |
| 2009 NY Slip Op 09826 [68 AD3d 1731] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Roger P.Zulian, Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedSeptember 15, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal possession of a weapon in the third degree and driving while intoxicated.
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 criminal possession of a weapon in the third degree (Penal Law §§110.00, 265.02 [1]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).The record establishes that defendant knowingly, intelligently, and voluntarily waived his rightto appeal, and that valid waiver encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248,255-256 [2006]; People v Hidalgo, 91 NY2d 733, 737 [1998]), as well as his challengeto the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665[1988]; People v Bailey, 49 AD3d1258 [2008], lv denied 10 NY3d 932 [2008]).
Although the contention of defendant that his plea was not voluntarily, knowingly, andintelligently entered survives his waiver of the right to appeal, defendant failed to move towithdraw his plea or to vacate the judgment of conviction and thus failed to preserve thatcontention for our review (see People v Harris, 269 AD2d 839 [2000]). We rejectdefendant's contention that this is one of those rare cases in which the exception to thepreservation requirement applies (see Lopez, 71 NY2d at 666). After defendant advisedCounty Court that he had taken prescription pain medication, the court conducted an inquiry that"was sufficient to ensure that the plea was voluntary," and defendant advised the court that hewas thinking clearly and understood the proceedings (People v Brown, 305 AD2d 1068,1069 [2003], lv denied 100 NY2d 579 [2003]).
Defendant further contends that he received ineffective assistance of counsel based ondefense counsel's failure to request an adjournment until defendant was no longer taking painmedication. That contention survives the guilty plea and the valid waiver of the right to appeal"only to the extent that defendant contends that his plea was infected by the alleged ineffectiveassistance" (People v Nieves, 299 AD2d 888, 889 [2002], lv denied 99 NY2d631 [2003]; see People v Kapp, 59AD3d 974 [2009], lv denied 12 NY3d 818 [2009]), and we conclude thatdefendant's contention is lacking in [*2]merit. Defendant"receive[d] an advantageous plea and nothing in the record casts doubt on the apparenteffectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995]; see Nieves,299 AD2d 888 [2002]). Present—Scudder, P.J., Fahey, Carni and Gorski, JJ.