| People v Lewandowski |
| 2011 NY Slip Op 02173 [82 AD3d 1602] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ArronW. Lewandowski, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedNovember 9, 2009. The judgment convicted defendant, upon his plea of guilty, of attemptedburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted burglary in the third degree (Penal Law §§ 110.00, 140.20), defendantcontends that the photo array was unduly suggestive. Defendant "forfeited the right to raise [thatcontention on appeal] because he pleaded guilty before [County Court] issued its suppressionruling" (People v Fifield, 24 AD3d1221, 1222 [2005], lv denied 6 NY3d 775 [2006]). In any event, defendant failed topreserve his contention for our review, and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see People v Magin, 1 AD3d 1024 [2003]).
Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by hisvalid waiver of the right to appeal (seePeople v Grimes, 53 AD3d 1055, 1056 [2008], lv denied 11 NY3d 789 [2008]).In any event, defendant failed to preserve that challenge for our review by failing to move towithdraw the plea or to vacate the judgment of conviction (see People v Lopez, 71 NY2d662, 665 [1988]). Although defendant's further contention that he is innocent and that his pleawas coerced by defense counsel survives his valid waiver of the right to appeal (see People v Wright, 66 AD3d1334 [2009], lv denied 13 NY3d 912 [2009]), that contention is also unpreserved forour review (see People v Lando, 61AD3d 1389 [2009], lv denied 13 NY3d 746 [2009]). This case does not fall withinthe rare exception to the preservation rule set forth in Lopez (71 NY2d at 666), inasmuchas nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness ofthe plea (see People v Loper, 38AD3d 1178, 1179 [2007]). In any event, "defendant's assertions of innocence and coercion[are] conclusory and belied by [his] statements during the plea colloquy" (Wright, 66AD3d at 1334).
The contention of defendant that he was denied effective assistance of counsel does notsurvive the plea or his valid waiver of the right to appeal because defendant "failed todemonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance[*2]or that defendant entered the plea because of [his] attorney['s]allegedly poor performance" (People vGleen, 73 AD3d 1443, 1444 [2010], lv denied 15 NY3d 773 [2010] [internalquotation marks omitted]). In any event, the record establishes that defendant receivedmeaningful representation (see generally People v Ford, 86 NY2d 397, 404 [1995]).
Finally, defendant failed to preserve for our review his further contention that he was arrestedwithout probable cause (see People vOjo, 43 AD3d 1367, 1368 [2007], lv denied 10 NY3d 769 [2008],reconsideration denied 11 NY3d 792 [2008]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Present—Scudder, P.J., Centra, Carni, Sconiers and Gorski, JJ.