PEOPLE v. BIGWARFE (2006)

Appeal from a judgment of the County Court of Schuyler County (Argetsinger, J.), rendered November 19, 2004, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

Defendant pleaded guilty to grand larceny in the fourth degree and, pursuant to an order adjourning sentencing, was admitted to Schulyer County Drug Treatment Court (hereinafter DTC) and released on his own recognizance.   He signed the DTC contract which provided that he would receive a three-year conditional discharge if he successfully completed the program, but could face a prison term of 2 to 4 years if he did not.   Subsequently, the People notified defendant that they sought to terminate him from the program.   Following a hearing, County Court terminated defendant from DTC and sentenced him, as a second felony offender, to 1 1/212 to 3 years in prison.

 Defendant first contends that County Court's participation as a member of the DTC team caused him to be biased against defendant at the termination hearing.   However, defendant failed to “make a motion or otherwise request County Court to recuse itself from the case” (People v. Rizzo, 5 A.D.3d 924, 925, 774 N.Y.S.2d 98 [2004], lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 418, 816 N.E.2d 208 [2004] ).   Consequently, defendant's claim of bias is not preserved for appellate review (see CPL 470.05[2];  People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824 [2004];  People v. Mabry, 27 A.D.3d 835, 836, 810 N.Y.S.2d 577 [2006];  People v. Rizzo, supra at 925, 774 N.Y.S.2d 98;  People v. Maxam, 301 A.D.2d 791, 793, 753 N.Y.S.2d 599 [2003], lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ).

 Defendant next argues that he was denied the effective assistance of counsel at the termination hearing because his attorney's participation in the DTC team created a conflict of interest that was detrimental to the defense.   This issue is also unpreserved since defendant did not move to either withdraw his guilty plea or vacate the judgment of conviction (see People v. McEnteggart, 26 A.D.3d 643, 643, 809 N.Y.S.2d 292 [2006], lv. denied 7 N.Y.3d 759, 819 N.Y.S.2d 885, 853 N.E.2d 256 [2006];  People v. Bennett, 24 A.D.3d 975, 975, 807 N.Y.S.2d 665 [2005], lv. denied 6 N.Y.3d 831, 814 N.Y.S.2d 79, 847 N.E.2d 376 [2006];  People v. Coles, 13 A.D.3d 665, 666, 786 N.Y.S.2d 595 [2004] ).

ORDERED that the judgment is affirmed.

CARDONA, P.J.

MUGGLIN, ROSE and LAHTINEN, JJ., concur.