| People v Ruffin |
| 2012 NY Slip Op 09269 [101 AD3d 1793] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ennis E.Ruffin, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered October7, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlledsubstance in or near school grounds.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal sale ofa controlled substance in or near school grounds (Penal Law § 220.44 [2]), defendant contendsin his main brief that his plea allocution was not factually sufficient. Defendant, on appeal, does notchallenge the validity of his waiver of the right to appeal, however, and thus his contention isencompassed by that waiver (see People vLewandowski, 82 AD3d 1602, 1602 [2011]). We further conclude that "the challenge bydefendant [in his main brief] to the sufficiency of the evidence before the grand jury is forfeited by hisguilty plea" (People v Dickerson, 66AD3d 1371, 1372 [2009], lv denied 13 NY3d 859 [2009]; see People vDunbar, 53 NY2d 868, 871 [1981]).
In addition, by pleading guilty, defendant forfeited his contention in his pro se supplemental briefwith respect to preindictment prosecutorial misconduct (see People v Di Raffaele, 55 NY2d234, 240 [1982]; People v Oliveri, 49AD3d 1208, 1209 [2008]). Finally, defendant contends in his pro se supplemental brief that hewas denied effective assistance of counsel. That contention does not survive his guilty plea or his waiverof the right to appeal because "[t]here is no showing that the plea bargaining process was infected by[the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s]allegedly poor performance" (People vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internalquotation marks omitted]). Present—Smith, J.P., Peradotto, Lindley, Sconiers and Valentino, JJ.