| People v Zolner |
| 2011 NY Slip Op 09444 [90 AD3d 1551] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Curtis W.Zolner, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedJuly 19, 2010. The judgment convicted defendant, upon his plea of guilty, of aggravatedvehicular assault and driving while intoxicated, a misdemeanor.
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 ofaggravated vehicular assault (Penal Law § 120.04-a [2] [a]) and driving while intoxicated(Vehicle and Traffic Law § 1192 [3]). The valid waiver by defendant of his right to appealencompasses his contention that County Court erred in refusing to suppress his statement to thepolice (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Spencer, 87 AD3d 1284,1285 [2011]), as well as his challenge to the factual sufficiency of the plea allocution (see People v Simcoe, 74 AD3d1858 [2010], lv denied 15 NY3d 778 [2010]). Defendant's further contention that hewas denied effective assistance of counsel with respect to both assigned and retained defensecounsel does not survive the plea or valid waiver of the right to appeal inasmuch as "defendantfailed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of . . . [the] allegedly poorperformance[s by defense counsel]" (People v Paduano, 84 AD3d 1730, 1731 [2011] [internal quotationmarks omitted]; see People vBellamy, 85 AD3d 1395 [2011]).
Defendant's contention that he was penalized for exercising his right to be represented bycounsel of his own choosing does not implicate the voluntariness of the plea and thus it is alsoencompassed by his valid waiver of the right to appeal (see People v Doyle, 82 AD3d 564 [2011], lv denied 17NY3d 805 [2011]). In any event, that contention is belied by the record (see generally Peoplev Arroyave, 49 NY2d 264, 270 [1980]). Finally, although the further contention of defendantwith respect to the voluntariness of his plea survives his waiver of the right to appeal, he failed topreserve that contention for our review, and this case does not fall within the narrow exception tothe preservation requirement (see Peoplev Morgan, 59 AD3d 950 [2009], lv denied 12 NY3d 857 [2009]).Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.