PEOPLE v. HAKES (2007)

 Defendant appeals from a judgment convicting him, upon his guilty plea, of three counts each of grand larceny in the second degree (Penal Law § 155.40[1] ) and falsifying business records in the first degree (§ 175.10), and one count of scheme to defraud in the first degree (§ 190.65[1] ).   Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Farnsworth, 32 A.D.3d 1176, 820 N.Y.S.2d 832, lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143;  People v. Abdallah, 23 A.D.3d 1116, 803 N.Y.S.2d 484, lv. denied 6 N.Y.3d 845, 847, 816 N.Y.S.2d 751, 753, 849 N.E.2d 974, 976), and this case does not come within the narrow exception to the preservation rule (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  Farnsworth, 32 A.D.3d at 1177, 820 N.Y.S.2d 832).   In any event, defendant entered an Alford plea to the three counts of falsifying business records, and “it is well settled that ‘an Alford plea ․ does not involve a recitation of guilt’ ” (People v. Smith, 26 A.D.3d 746, 747, 807 N.Y.S.2d 897, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259).   We conclude that the plea allocution is factually sufficient with respect to the remaining counts (see generally Farnsworth, 32 A.D.3d at 1177, 820 N.Y.S.2d 832).   Defendant also contends that the plea was not voluntarily entered because there was an impermissible shift in the prosecution's theory of larceny based on the reference in the plea colloquy to larceny by “unlawful taking” rather than to larceny by “false pretenses.”   That contention is not preserved for our review (see generally People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564) and, in any event, it is not supported by the record.   Finally, 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 attorney['s] allegedly poor performance’ ” (People v. Barnes, 32 A.D.3d 1250, 1251, 821 N.Y.S.2d 541, quoting 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: