| People v Shubert |
| 2011 NY Slip Op 03465 [83 AD3d 1577] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Andrew P.Shubert, 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.), rendered May 11,2009. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the firstdegree.
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 rape in the first degree (Penal Law §§ 110.00, 130.35 [4]), defendantcontends that his waiver of the right to appeal was not knowing and voluntary. Even assuming,arguendo, that the waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256-257 [2006]), wenevertheless conclude that none of defendant's contentions on appeal requires reversal ormodification. Contrary to defendant's contention, the sentence is not unduly harsh or severe. Inaddition, by failing to move to withdraw the plea or to vacate the judgment of conviction,defendant failed to preserve for our review his further contentions that the plea allocution wasfactually insufficient (see People v Lopez, 71 NY2d 662, 665 [1988]), and that the pleawas not knowing and voluntary (seePeople v Cruz, 81 AD3d 1300 [2011]). In any event, the record establishes that thosecontentions are without merit. Finally, to the extent that defendant's contention that he wasdenied effective assistance of counsel is not forfeited by his plea of guilty (see People v Brown, 63 AD3d1650 [2009]), that contention also is without merit (see generally People v Ford, 86NY2d 397, 404 [1995]). Defense counsel obtained an advantageous plea offer and requestedseveral breaks during the plea proceeding in order to address defendant's questions and concerns.Indeed, defendant assured County Court that he was satisfied with the representation that hereceived from defense counsel. Present—Scudder, P.J., Fahey, Carni, Green and Gorski,JJ.