PEOPLE v. NIEVES (2002)

 By failing to move either to withdraw his plea of guilty or to vacate the judgment of conviction, defendant has failed to preserve for our review his contention that County Court erred in accepting his plea to attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[3] ) without conducting an inquiry on a possible intoxication defense (see People v. Harrell, 288 A.D.2d 489, 735 N.Y.S.2d 392, lv. denied 98 N.Y.2d 651, 745 N.Y.S.2d 510, 772 N.E.2d 613;  People v. Townley, 286 A.D.2d 885, 730 N.Y.S.2d 908;  People v. Swank, 278 A.D.2d 861, 717 N.Y.S.2d 438, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87).   In any event, that contention lacks merit.   Such an inquiry is required only “[w]hen the colloquy raises the possibility of [that] defense” (People v. Munck, 278 A.D.2d 662, 663, 717 N.Y.S.2d 431).   Here, defendant did not raise an issue of intoxication until he was interviewed by the Probation Department approximately one year after he pleaded guilty.

 The contention of defendant that he was denied effective assistance of counsel survives his guilty plea only to the extent that defendant contends that his plea was infected by the alleged ineffective assistance (see People v. Sikes [appeal No. 1], 286 A.D.2d 902, 730 N.Y.S.2d 901, lv. denied 97 N.Y.2d 658, 737 N.Y.S.2d 59, 762 N.E.2d 937;  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).   Defendant received “an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel,” and thus we conclude that defendant received meaningful representation (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The bargained-for sentence, which was imposed despite the fact that defendant absconded before sentencing, is neither unduly harsh nor severe.

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

MEMORANDUM: