PEOPLE v. GINTER (2005)

 On appeal from a judgment convicting him, upon his plea of guilty, of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[1] ), defendant challenges the factual sufficiency of the plea allocution.   That challenge is encompassed by defendant's valid waiver of the right to appeal (see People v. King, 20 A.D.3d 907, 798 N.Y.S.2d 638;  People v. Turner, 16 A.D.3d 1150, 790 N.Y.S.2d 916, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 265, 834 N.E.2d 1275) and, in any event, is without merit (see People v. Tyler, 260 A.D.2d 796, 690 N.Y.S.2d 136, lv. denied 93 N.Y.2d 980, 695 N.Y.S.2d 67, 716 N.E.2d 1112).   The waiver by defendant of the right to appeal also encompasses his 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;   People v. Thomas, 17 A.D.3d 1047, 1048, 793 N.Y.S.2d 652, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274) and his contention that his statements to law enforcement agents should have been suppressed (see People v. La Bar, 16 A.D.3d 1084, 791 N.Y.S.2d 233, lv. denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269;  People v. Taylor, 302 A.D.2d 868, 754 N.Y.S.2d 480, lv. denied 99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297).

 By failing to move to withdraw his plea of guilty or to vacate the judgment of conviction, defendant failed to preserve for our review his further contentions concerning County Court's alleged failure to advise him that he was subject to registration under the Sex Offender Registration Act (Correction Law § 168 et seq.;   see People v. Hurd, 12 A.D.3d 1198, 1199, 784 N.Y.S.2d 435, lv. denied 4 N.Y.3d 764, 792 N.Y.S.2d 8, 825 N.E.2d 140) and a period of postrelease supervision (see People v. DePugh, 16 A.D.3d 1083, 791 N.Y.S.2d 234;  People v. Pan Zhi Feng, 15 A.D.3d 862, 789 N.Y.S.2d 592;  People v. Hollenbach, 307 A.D.2d 776, 762 N.Y.S.2d 860, lv. denied 100 N.Y.2d 642, 769 N.Y.S.2d 208, 801 N.E.2d 429).   Similarly unpreserved for our review is the contention of defendant that his postplea statements to a probation officer negated an element of the crime to which he pleaded guilty (see People v. Young, 281 A.D.2d 950, 723 N.Y.S.2d 588, lv. denied 96 N.Y.2d 909, 730 N.Y.S.2d 808, 756 N.E.2d 96), and his contention concerning the duration of the order of protection (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13).   We decline to exercise our power to review defendant's contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

The contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty inasmuch as “[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorneys' allegedly poor performance” (People v. Burke, 256 A.D.2d 1244, 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).   In any event, we conclude that defendant received effective assistance of counsel from his attorneys (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: