PEOPLE v. PITTMAN (2004)

 Defendant appeals from a judgment convicting her upon her plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [4] ).   Defendant was sentenced to a determinate term of incarceration of 18 years and five years of postrelease supervision.   The charges arose out of the death of defendant's 13-month-old child.   The child died from blunt force trauma as a result of being thrown and dropped by defendant, who took no steps to obtain medical attention for the child.   Having withdrawn her request to withdraw her plea, defendant failed to preserve for our review her contention that the plea was not knowingly, voluntarily or intelligently entered (see People v. Fulwiley, 9 A.D.3d 905, 779 N.Y.S.2d 385, lv. denied 3 N.Y.3d 674, 784 N.Y.S.2d 12, 817 N.E.2d 830;  see generally People v. Rivers, 269 A.D.2d 836, 703 N.Y.S.2d 783).  “Because defendant's statements at the plea allocution do not engender significant doubt with regard to the voluntariness of the plea, the ‘allocution does not qualify for the narrow, “rare case” exception to the preservation doctrine described in People v. Lopez, 71 N.Y.2d 662, 666 [529 N.Y.S.2d 465, 525 N.E.2d 5]’ ” (People v. DeJesus, 248 A.D.2d 1023, 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, quoting People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160, rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225). In any event, Supreme Court sufficiently explained the rights that defendant was waiving by pleading guilty.   The contention of defendant that she was denied effective assistance of counsel does not survive her plea of guilty where, as here, “[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 [her] attorney's 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, defendant received effective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to the further contention of defendant, her unrestricted waiver of the right to appeal encompasses her contentions regarding the severity of the sentence and the court's suppression determination (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: