PEOPLE v. LEONARD (2007)

 On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[7] ), defendant contends that he did not validly waive his right to appeal.   We reject that contention.   In order for defendant's waiver of the right to appeal to be enforceable, “it must be voluntary, knowing and intelligent” (People v. Moissett, 76 N.Y.2d 909, 911, 563 N.Y.S.2d 43, 564 N.E.2d 653), and the facts and circumstances surrounding the waiver establish that it was (see People v. Barber, 278 A.D.2d 864, 718 N.Y.S.2d 512, lv. denied 96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205;  People v. Coleman [Appeal No. 1], 219 A.D.2d 827, 632 N.Y.S.2d 907).   The further 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” (People v. Barnes, 32 A.D.3d 1250, 1251, 821 N.Y.S.2d 541 [internal quotation marks omitted];  see People v. Perillo, 300 A.D.2d 1097, 751 N.Y.S.2d 897, lv. denied 99 N.Y.2d 618, 757 N.Y.S.2d 829, 787 N.E.2d 1175).   In any event, defendant failed to preserve that contention for our review because he failed to move to withdraw his guilty plea or to vacate the judgment of conviction on that ground (see People v. White, 37 A.D.3d 1112, 828 N.Y.S.2d 748;  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).

 The contention of defendant in his pro se supplemental brief that County Court should have recused itself is encompassed by the waiver of the right to appeal (see People v. Palermo, 301 A.D.2d 957, 753 N.Y.S.2d 402, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296) and also is unpreserved for our review (see CPL 470.05[2] ).   In any event, that contention lacks merit.   Defendant demonstrated no basis for mandatory recusal inasmuch as the Judge's brother was not a party to the criminal proceeding against defendant (see Judiciary Law § 14;  People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958).   We have considered the remaining contentions raised in defendant's pro se supplemental brief 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: