| People v Lugg |
| 2013 NY Slip Op 05133 [108 AD3d 1074] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTevieae T. Lugg, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered August 19, 2005. The judgment convicted defendant, upon his plea of guilty, ofrape in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea ofguilty of rape in the second degree (Penal Law § 130.30 [1]). We note thatdefendant's challenges to the jurisdictional requirements of the waiver of indictment andthe superior court information need not be preserved for our review (see People vBoston, 75 NY2d 585, 589 n [1990]; People v Finch, 96 AD3d 1485, 1486 [2012]; People v Waid, 26 AD3d734, 734-735 [2006], lv denied 6 NY3d 839 [2006]), and those challengesare also not precluded by defendant's valid waiver of his right to appeal (seeFinch, 96 AD3d at 1486; People v Harris, 267 AD2d 1008, 1009 [1999]).Contrary to defendant's contention, however, the record establishes that he entered avalid waiver of indictment, and freely and voluntarily consented to be prosecuted by wayof a superior court information (see CPL 195.10, 195.20; People v Burney, 93 AD3d1334, 1334 [2012]; seegenerally People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17NY3d 815 [2011]). Additionally, defendant's contention that the superior courtinformation was jurisdictionally defective lacks merit (see generally CPL 200.15;People v Menchetti, 76 NY2d 473, 475 [1990]).
Defendant's challenge to the factual sufficiency of the plea allocution is encompassedby the valid waiver of appeal and is unpreserved for our review inasmuch as defendantdid not move to withdraw the plea or vacate the judgment of conviction on that ground(see People v Rios, 93AD3d 1349, 1349 [2012], lv denied 19 NY3d 966 [2012]). Although thecontention of defendant that his guilty plea was not knowingly, voluntarily andintelligently entered survives his waiver of the right to appeal, because defendant did notmove to withdraw the plea or to vacate the judgment of conviction on that ground, hefailed to preserve that contention for our review (see Burney, 93 AD3d at 1334;People v Russell, 55 AD3d1314, 1314-1315 [2008], lv denied 11 NY3d 930 [2009]). Contrary todefendant's contention, this case does not fall within the narrow exception to thepreservation requirement set forth in People v Lopez (71 NY2d 662, 666[1988]). Defendant's further contention that he was denied effective assistance of counseldoes not survive either the plea of guilty or the waiver by defendant of the right to appealbecause he failed to demonstrate that "the plea [*2]bargaining process was infected by [the] allegedlyineffective assistance or that he entered the plea because of his attorney['s] allegedly poorperformance" (People vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007][internal quotation marks omitted]; see Burney, 93 AD3d at 1334).Present—Centra, J.P., Fahey, Carni and Sconiers, JJ.