| People v Burney |
| 2012 NY Slip Op 02225 [93 AD3d 1334] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carmen C.Burney, 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.), renderedJanuary 31, 2011. The judgment convicted defendant, upon her plea of guilty, of attemptedassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]). Contraryto defendant's contention, the record shows that she entered a valid waiver of indictment, andfreely and voluntarily consented to be prosecuted by way of a superior court information(see CPL 195.10, 195.20; seegenerally People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815[2011]; People v McKenzie, 51AD3d 823 [2008]). Although the contention of defendant that her guilty plea was notknowingly, voluntarily and intelligently entered survives her waiver of the right to appeal,defendant did not move to withdraw the plea or to vacate the judgment of conviction and thusfailed to preserve that contention for our review (see People v Russell, 55 AD3d 1314, 1314-1315 [2008], lvdenied 11 NY3d 930 [2009]; People v Harrison, 4 AD3d 825 [2004], lv denied2 NY3d 740 [2004]). Defendant's further contention that she was denied effective assistanceof counsel does not survive either the plea of guilty or the waiver by defendant of the right toappeal because she failed to demonstrate that "the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of [her] attorney['s]allegedly poor performance" (People vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internalquotation marks omitted]). Present—Scudder, P.J., Centra, Carni, Lindley and Martoche,JJ.