| People v Oldshield |
| 2012 NY Slip Op 01988 [93 AD3d 1238] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shawnee Q.Oldshield, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (John C. Luzier of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedNovember 29, 2010. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the second degree and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following his plea of guilty, ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]) andcriminal mischief in the fourth degree (§ 145.00), defendant contends that he did notvalidly waive his right to appeal. We reject that contention (see generally People v Lopez, 6 NY3d 248, 256 [2006]), and hiscontention that he did not receive effective assistance of counsel does not survive either theguilty plea or the valid waiver of the right to appeal "because [t]here is no showing that the pleabargaining process was infected by [the] allegedly ineffective assistance or that defendant enteredthe plea because of his attorney['s] allegedly poor performance" (People v Robinson, 39 AD3d1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internal quotation marksomitted]). Defendant further contends that his plea was not knowing, voluntary and intelligent.Defendant, however, did not move to withdraw his guilty plea or to vacate the judgment ofconviction on that ground and thus, although his contention survives the valid waiver of the rightto appeal, it is not preserved for our review (see People v Zulian, 68 AD3d 1731, 1732 [2009], lv denied14 NY3d 894 [2010]). Upon our review of the record, we conclude that this case does notfall within the rare exception to the preservation requirement set forth in People v Lopez(71 NY2d 662, 666 [1988]). Present—Scudder, P.J., Centra, Carni, Lindley and Martoche,JJ.