People v White

2011 NY Slip Op 00750

Decided on February 10, 2011

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 10, 2011
103074



Calendar Date: January 5, 2011
Before: Cardona, P.J., Peters, Lahtinen, McCarthy and Garry, JJ.


A.L. Beth O'Connor, Cortland, for appellant.
Mark D. Suben, District Attorney, Cortland (Kevin A.
Jones of counsel), for respondent.

MEMORANDUM AND ORDER


McCarthy, J.

Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered October 22, 2009, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree, waived his right to appeal and was sentenced as a second felony offender to the negotiated prison term of four years followed by three years of postrelease supervision. Defendant appeals and we affirm.

Defendant's claim of judicial bias is foreclosed by his valid appeal waiver (see People v Kilgore, 45 AD3d 886, 887 [2007], lv denied 10 NY3d 767 [2008]; People v McCafferty, 1 AD3d 799, 799 [2003], lv denied 2 NY3d 743 [2004]) and unpreserved for our review given his "failure to make a motion or otherwise request County Court to recuse itself from the case" (People v Rizzo, 5 AD3d 924, 925 [2004], lv denied 3 NY3d 646 [2004]; see People v Mao-Sheng Lin, 50 AD3d 1251, 1253 [2008], lv denied 10 NY3d 961 [2008]). In any event, were we to review the claim, we would find it unavailing (see generally People v Smith, 272 AD2d 679, 681-682 [2000], lv denied 95 NY2d 938 [2000]).

Defendant's assertion that County Court erred by allowing the prosecution to participate [*2]in the plea allocution is also unpreserved since he did not move to withdraw the plea or vacate the judgement of conviction (see People v Montanez, 287 AD2d 407, 408 [2001], lv denied 97 NY2d 685 [2001]; People v Bonneau, 142 AD2d 890, 890 [1988], lv denied 73 NY2d 889 [1989]).

Cardona, P.J., Peters, Lahtinen and Garry, JJ., concur.

ORDERED that the judgment is affirmed.