| People v Secrist |
| 2010 NY Slip Op 05177 [74 AD3d 1853] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert D.Secrist, Appellant. |
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Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedMarch 3, 2008. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree and burglary in the second 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]) and burglary in the second degree(§ 140.25 [2]). Although defendant is correct that his challenge to the voluntariness of hisplea survives his waiver of the right to appeal, defendant failed to preserve that challenge for ourreview because he failed to move to withdraw the plea or to vacate the judgment of conviction(see People v Connolly, 70 AD3d1510, 1511 [2010]). Contrary to the contention of defendant, his use of prescriptionmedication does not bring this case within the narrow exception to the preservation doctrineinasmuch asnothing in the plea allocution "cast[ ] significant doubt upon . . . defendant's guilt orotherwise call[ed] into question the voluntariness of the plea" (People v Lopez, 71 NY2d662, 666 [1988]). To the extent that the contention of defendant that he was denied effectiveassistance of counsel survives the plea and his waiver of the right to appeal (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), we conclude that it is without merit(see generally People v Ford, 86 NY2d 397, 404 [1995]). Present—Centra, J.P.,Peradotto, Carni, Lindley and Pine, JJ.