| People v Bishop |
| 2014 NY Slip Op 01924 [115 AD3d 1243] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LanceR. Bishop, Appellant. |
—[*1] Lance R. Bishop, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered June 4, 2009. The judgment convicted defendant, upon his plea of guilty, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of manslaughter in the first degree (Penal Law § 125.20 [1]). Although thedefendant's contention that his plea was not knowing, intelligent, or voluntary surviveshis waiver of the right to appeal, defendant failed to preserve his contention for ourreview inasmuch as he failed to move to withdraw the plea or to vacate the judgment ofconviction (see People vWatkins, 77 AD3d 1403, 1403 [2010], lv denied 15 NY3d 956 [2010]).Furthermore, "[n]othing in the plea allocution raised the possibility that [a justificationdefense was] applicable in this case, and defendant's contention therefore does not fallwithin the narrow exception to the preservation rule" (People v Hart, 114 AD3d1273 [2014] [citations omitted]; cf. People v Ponder, 34 AD3d 1314, 1315 [2006]; seegenerally People v Lopez, 71 NY2d 662, 666 [1988]).
Defendant's challenge to the alleged amendment to the indictment is similarlyunavailing. Although the indictment was amended at the beginning of the pleaproceeding to reflect the charge to which defendant ultimately pleaded guilty under theagreement, we conclude that County Court's reference to an incorrect Penal Lawprovision, while referring to the crime of manslaughter in the first degree by name, wasakin to a mere "misnomer in the designation of the crime charged," which does not createa jurisdictional defect (People vRodriguez, 97 AD3d 246, 252 [2012], lv denied 19 NY3d 1028 [2012]).Thus, defendant's uncontested waiver of the right to appeal precludes his challenge to thecourt's failure to recite the applicable provision (see People v Cullen, 62 AD3d 1155, 1157 [2009], lvdenied 13 NY3d 795 [2009]) and, in any event, the court's misstatement " '[is] anirregularity' " that does not survive defendant's plea of guilty (Rodriguez, 97AD3d at 252; see People vJudd, 111 AD3d 1421, 1422 [2013]; see generally People v Iannone, 45NY2d 589, 600-601 [1978]).[*2]
The ineffective assistance of counsel claimscontained in defendant's pro se supplemental brief do not survive his plea and waiver ofthe right to appeal, because defense counsel's allegedly poor performance did not infectthe plea bargaining process (seePeople v Wright, 66 AD3d 1334, 1334 [2009], lv denied 13 NY3d 912[2009]; see also People vHodge, 85 AD3d 1680, 1681 [2011], lv denied 18 NY3d 883 [2012]; People v Kearns, 50 AD3d1514, 1515 [2008], lv denied 11 NY3d 790 [2008]). Furthermore, to theextent that many of his contentions involve matters outside the record on appeal, we notethat they must be raised by way of a motion pursuant to CPL 440.10 (see People v Russell, 83 AD3d1463, 1465 [2011], lv denied 17 NY3d 800 [2011]).
We have reviewed defendant's remaining contentions in his pro se supplemental briefand conclude that none requires modification or reversal of the judgment.Present—Smith, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.