| People v Hodge |
| 2011 NY Slip Op 05316 [85 AD3d 1680] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Shakeymo Hodge, Appellant. (Appeal No. 1.) |
—[*1] John C. Tunney, District Attorney, Bath (Michael D. McCartney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), rendered June7, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of attempted criminal possession of a controlled substance in the third degree(Penal Law §§ 110.00, 220.16 [1]). In appeal No. 2, defendant appeals from ajudgment convicting him upon his plea of guilty of attempted criminal sale of a controlledsubstance in the third degree (§§ 110.00, 220.39 [1]). Defendant contends in eachappeal that his plea was not voluntarily, intelligently and knowingly entered because, inter alia,County Court failed to conduct a factual colloquy and failed to ensure that defendant understoodhis constitutional rights. Although defendant filed a pro se motion to withdraw his plea prior tosentencing, defendant voluntarily withdrew that motion before it was ruled upon by the court,and he did not thereafter move to vacate the judgments of conviction. Defendant therefore failedto preserve his contention for our review (see People v Tantao, 41 AD3d 1274 [2007], lv denied 9NY3d 882 [2007]; People vAguayo, 37 AD3d 1081 [2007], lv denied 8 NY3d 981 [2007]). We concludethat this case does not fall within the rare exception to the preservation rule set forth inPeople v Lopez (71 NY2d 662, 666 [1988]), "inasmuch as nothing in the plea colloquycasts significant doubt on defendant's guilt or the voluntariness of the plea" (People v Lewandowski, 82 AD3d1602, 1602 [2011]). In any event, to the extent that defendant's contention is actually achallenge to the factual sufficiency of the plea colloquy, we note that, "where, as here, [the]defendant pleads guilty to a crime less than that charged in the indictment, a factual colloquy isnot required" (People v Harris, 233 AD2d 959 [1996], lv denied 89 NY2d 1094[1997]).
Defendant's further contention in each appeal that he was deprived of effective assistance ofcounsel survives his plea only to the extent " 'that the plea bargaining process was infected by anyallegedly ineffective assistance or that defendant entered the plea because of [defense counsel's]allegedly poor performance' " (People vFomby, 42 AD3d 894, 895 [2007]). Thus, although [*2]defendant contends that defense counsel was ineffective in severalrespects, only his contention that defense counsel failed to advise him properly with respect to hisconstitutional rights survives the plea, and that contention is belied by the record. Finally, thesentence in each appeal is not unduly harsh or severe. Present—Smith, J.P., Fahey, Carni,Lindley and Gorski, JJ.