| People v Wissert |
| 2011 NY Slip Op 04941 [85 AD3d 1633] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesWissert, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedFebruary 1, 2010. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class E felony.
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 offelony driving while intoxicated (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c][former (i)]). Contrary to defendant's contentions, he "validly waived [his] right to be prosecutedby indictment and consented to be prosecuted by superior court information" (People vSchultz, 258 AD2d 879, 879 [1999], lv denied 93 NY2d 929 [1999]; see Matter of Peterson v Becker, 72AD3d 1250, 1252 [2010], lv dismissed 15 NY3d 816 [2010]), and the writteninstrument signed by defendant and the District Attorney satisfies the requirements of CPL195.20 (see generally People vSterling, 27 AD3d 950 [2006], lv denied 6 NY3d 898 [2006]). Also contrary todefendant's contention, the record establishes that the conditions of interim probation and theconsequences of violating those conditions were adequately explained to him (see People v Holmes, 67 AD3d1069, 1070-1071 [2009]). Defendant failed to preserve for our review his further contentionthat County Court erred in failing to conduct a hearing to determine whether he violated theconditions of his interim probation (seePeople v Saucier, 69 AD3d 1125 [2010]; People v Dissottle, 68 AD3d 1542, 1544 [2009], lv denied14 NY3d 799 [2010]). In any event, we conclude that the court's inquiry into the matter "was 'ofsufficient depth' to enable the court to determine that defendant failed to comply with the termsand conditions of his interim probation" (People v Rollins, 50 AD3d 1535, 1536 [2008], lv denied 10NY3d 939 [2008]). By failing to move to withdraw the plea or to vacate the judgment ofconviction, defendant failed to preserve for our review his contention that his plea was notknowingly, voluntarily and intelligently entered (see People v Mackey, 79 AD3d 1680 [2010]), and this case doesnot fall within the narrow exception to the preservation requirement (see People v Lopez,71 NY2d 662, 665 [1988]). Finally, to the extent that defendant's contention that he was deniedeffective assistance of counsel survives his guilty plea (see People v Bethune, 21 AD3d 1316 [2005], lv denied 6NY3d 752 [2005]), that contention lacks merit (see generally People v Ford, 86 NY2d397, 404 [1995]). Present—Scudder, P.J., Smith, Carni, Sconiers and Green, JJ.