| People v Jacques |
| 2010 NY Slip Op 09812 [79 AD3d 1812] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Delbert J.Jacques, Jr., Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Hannah Stith Long of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedSeptember 14, 2009. The judgment convicted defendant, upon his plea of guilty, of conspiracy inthe 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 ofconspiracy in the second degree (Penal Law § 105.15). Defendant failed to preserve for ourreview his contention that County Court's policy prohibiting further plea bargaining after thefinal plea conference constitutes an abuse of discretion (see People v Nieves, 2 NY3d 310, 315-316 [2004]), and we declineto exercise our power to address that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Moreover, that contention does not survive defendant's validwaiver of the right to appeal in any event, inasmuch as plea bargaining policies "do not implicateconstitutional considerations" (People vHumphrey, 30 AD3d 766, 767 [2006], lv denied 7 NY3d 813 [2006]) and,"generally, an appeal waiver will encompass any issue that does not involve a right ofconstitutional dimension going to 'the very heart of the process' " (People v Lopez, 6 NY3d 248, 255[2006]). The record does not support defendant's further contention that the court refused toaccept a plea bargain " 'based on circumstances unrelated to . . . defendant and theproposed bargain at issue' " (People v Bonilla, 299 AD2d 934, 934 [2002], lv denied99 NY2d 580 [2003]). The contention of defendant that he was denied effective assistance ofcounsel survives the plea and waiver of the right to appeal only to the extent that "he contendsthat his plea was infected by the allegedly ineffective assistance and that he entered the pleabecause of his attorney's allegedly poor performance" (People v Bethune, 21 AD3d 1316 [2005], lv denied 6NY3d 752 [2005]; see People vNeal, 56 AD3d 1211 [2008], lv denied 12 NY3d 761 [2009]). We conclude,however, that defendant's contention lacks merit to that extent (see generally People vFord, 86 NY2d 397, 404 [1995]). Present—Centra, J.P., Peradotto, Carni andSconiers, JJ.