| People v Gleen |
| 2010 NY Slip Op 03988 [73 AD3d 1443] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tomea Gleen,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedOctober 1, 2008. The judgment convicted defendant, upon her plea of guilty, of attemptedkidnapping in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofattempted kidnapping in the second degree (Penal Law §§ 110.00, 135.20).Contrary to defendant's contention, the record of the plea proceeding establishes that defendantunderstood that the waiver of the right to appeal was separate from her plea of guilty (see People v Dillon, 67 AD3d1382 [2009]), and we conclude that her waiver of the right to appeal was knowingly,intelligently, and voluntarily entered (see People v Lopez, 6 NY3d 248, 256 [2006]). Defendant failed topreserve for our review her challenge to the factual sufficiency of the plea allocution by movingto withdraw the plea on that ground or by way of a motion pursuant to CPL 440.10 (seePeople v Lopez, 71 NY2d 662, 665 [1988]) and, in any event, that challenge is encompassedby her valid waiver of the right to appeal (see People v Grimes, 53 AD3d 1055, 1056 [2008], lv denied11 NY3d 789 [2008]). The further contention of defendant that she was denied effectiveassistance of counsel likewise does not survive her plea or her valid waiver of the right to appealbecause defendant "failed to demonstrate that 'the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of [her] attorney['s]allegedly poor performance' " (People vWright, 66 AD3d 1334 [2009], lv denied 13 NY3d 912 [2009]; see People v McDuffie, 43 AD3d559, 560 [2007], lv denied 9 NY3d 992 [2007]). In any event, the record establishesthat defendant received meaningful representation (see generally People v Ford, 86NY2d 397, 404 [1995]).
Finally, we conclude that County Court did not abuse its discretion in denying the motion ofdefendant to withdraw her plea based upon her unsubstantiated assertions of innocence duringthe course of the presentence investigation. "[A] defendant is not entitled to withdraw [her]guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea wasvoluntarily made with the advice of counsel following an appraisal of all the relevant factors"(People v Alexander, 97 NY2d 482, 485 [2002] [internal quotation marks omitted]).Here, defendant did not contend during the plea proceeding that she was innocent and, contraryto her contention, the record before us contains no evidence that her plea was coerced (seePeople v Zakrzewski, 7 [*2]AD3d 881, 882 [2004]).Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers, JJ.