| People v Eagle |
| 2013 NY Slip Op 02967 [105 AD3d 1453] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAugustus R. Eagle, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.),rendered May 15, 2009. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the fifth degree.
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 ofcriminal possession of a controlled substance in the fifth degree (Penal Law §220.06 [1]), defendant contends that his plea was not knowingly, intelligently andvoluntarily entered because his statement concerning defense counsel during the pleacolloquy created doubt as to the voluntariness of his plea. Defendant's contentionsurvives his valid waiver of the right to appeal, but he failed to preserve that contentionfor our review by failing to move to withdraw the plea or to vacate the judgment ofconviction (see People vRuffins, 78 AD3d 1627, 1628 [2010]; People v Davis, 45 AD3d 1357, 1357-1358 [2007], lvdenied 9 NY3d 1005 [2007]). In any event, defendant's contention lacks merit.Although defendant responded "[n]o" during the plea colloquy when the prosecutorasked if he was satisfied with his attorney's representation of him, he did not request newcounsel, nor did he raise any " 'serious complaints' " about his attorney (People v Porto, 16 NY3d93, 100 [2010]). Indeed, in a plea agreement document signed on the day of the plea,before the prosecutor conducted the plea colloquy, defendant indicated that he wassatisfied with the representation provided by his attorney. Under those circumstances,County Court was not required to make any inquiry with respect to defendant's responseto the prosecutor's question during the plea colloquy (see id. at 99-100; seegenerally People v Sides, 75 NY2d 822, 824-825 [1990]). Defendant's contentionregarding the factual sufficiency of the plea allocution is encompassed by the validwaiver of the right to appeal and it is unpreserved for our review (see People v Rios, 93 AD3d1349, 1349 [2012], lv denied 19 NY3d 966 [2012]; People v Williams, 91 AD3d1299, 1299 [2012]). Present—Scudder, P.J., Centra, Carni, Sconiers andMartoche, JJ.