PEOPLE v. TANTAO (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ) and grand larceny in the fourth degree (§ 155.30 [7] ).   Contrary to the contention of defendant, the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal.   County Court was “not required to engage in any particular litany” in order to obtain a valid waiver of the right to appeal (People v. Moissett, 76 N.Y.2d 909, 910, 563 N.Y.S.2d 43, 564 N.E.2d 653), and the waiver is not invalid on the ground that the court did not specifically inform defendant that his general waiver of the right to appeal encompassed the court's suppression rulings (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754).   The court's questions during the plea colloquy, including two questions concerning the waiver of the right to appeal, and defendant's responses to those questions establish that defendant understood the proceedings and voluntarily waived the right to appeal.   That valid waiver encompasses defendant's challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).   By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his further contentions that the plea was involuntary (see People v. Santalucia, 19 A.D.3d 806, 807, 797 N.Y.S.2d 590, lv. denied 5 N.Y.3d 856, 806 N.Y.S.2d 176, 840 N.E.2d 145;  People v. Williams, 6 A.D.3d 1149, 775 N.Y.S.2d 661, lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211;   People v. Beekman, 280 A.D.2d 784, 721 N.Y.S.2d 146, lv. denied 96 N.Y.2d 780, 725 N.Y.S.2d 644, 749 N.E.2d 213), and that he was denied effective assistance of counsel (see People v. Leonard, 37 A.D.3d 1148, 1149, 829 N.Y.S.2d 369;  People v. Thompson, 4 A.D.3d 785, 771 N.Y.S.2d 436, lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479;  People v. Fulford, 296 A.D.2d 661, 662, 745 N.Y.S.2d 596).   In any event, the “contention of defendant that he was denied effective assistance of counsel does not survive his guilty plea or his waiver of the right to appeal because there was 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’ ” (Leonard, 37 A.D.3d at 1149, 829 N.Y.S.2d 369, quoting People v. Barnes, 32 A.D.3d 1250, 1251, 821 N.Y.S.2d 541;  see People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: