| People v Dewiel |
| 2012 NY Slip Op 07812 [100 AD3d 1524] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TimothyDewiel, Appellant. |
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Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedSeptember 15, 2011. The judgment convicted defendant, upon his plea of guilty, of attemptedburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]),defendant contends that he was denied his rights pursuant to CPL 380.50 (2) (e) at sentencing.That contention is encompassed by defendant's valid waiver of the right to appeal (see People v Collier, 71 AD3d909, 910 [2010], lv denied 15 NY3d 773 [2010]; see generally People v Lanzara, 59 AD3d 936, 937 [2009], lvdenied 12 NY3d 855 [2009]). Also, defendant's contention is unpreserved for our reviewinasmuch as it is " 'addressed merely to the adequacy of the procedures [County Court] used toarrive at its sentencing determination,' " and defendant failed to raise it in a timely manner beforethe court (People v Daniqua S.D.,92 AD3d 1226, 1227 [2012], quoting People v Callahan, 80 NY2d 273, 281 [1992]).
Defendant's contention that he was denied effective assistance of counsel does not survivehis plea or his valid waiver of the right to appeal because defendant "failed to demonstrate that'the plea bargaining process was infected by [the] allegedly ineffective assistance or thatdefendant entered the plea because of his attorney['s] allegedly poor performance' " (People v Wright, 66 AD3d 1334,1334 [2009], lv denied 13 NY3d 912 [2009]; see People v Rizek [appeal No. 1],64 AD3d 1180, 1180 [2009], lv denied 13 NY3d 862 [2009]). In any event, defendant'scontention lacks merit inasmuch as he "receive[d] an advantageous plea and nothing in the recordcasts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404[1995]). Finally, defendant failed to preserve for our review his contention that the court erred infailing to recuse itself (see People vPett, 74 AD3d 1891, 1892 [2010]; People v Lebron, 305 AD2d 799, 800 [2003],lv denied 100 NY2d 583 [2003]). In any event, that contention is without merit (seegenerally People v Moreno, 70 NY2d 403, 405-406 [1987]; People v Crane, 294AD2d 867, 867 [2002], lv denied 98 NY2d 767 [2002]; People v Brunner, 182AD2d 1123, 1123 [1992], lv denied 80 NY2d 828 [1992]). Present—Centra, J.P.,Peradotto, Lindley, Sconiers and Martoche, JJ.