PEOPLE v. PARARA (2007)

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered September 12, 2006, convicting defendant upon his plea of guilty of the crimes of attempted assault in the second degree and attempted promoting prison contraband in the first degree.

Defendant, a prison inmate, was indicted on two counts of assault in the second degree and one count of promoting prison contraband in the second degree.   The charges arose from an incident wherein defendant, in attempting to prevent a correction officer from recovering contraband on his person, struck that correction officer in the head.   Defendant thereafter agreed to plead guilty, under a superceding superior court information, to attempted assault in the second degree and attempted promoting prison contraband in the first degree with the express understanding that he would be sentenced as a second felony offender to consecutive prison terms of 2 to 4 years on each charge.   This agreement limited defendant's otherwise significant exposure, as a persistent felon, to a much greater sentence.   Pursuant to the plea agreement, defendant waived his right to appeal and the People dismissed the original indictment.   Sentenced in accordance with this agreement, he now appeals.   We affirm.

 Defendant argues that his plea allocution was insufficient because certain statements made by him cast doubt on his guilt.   He further argues that, despite his failure to move to withdraw his plea or vacate the judgment of conviction, this issue is properly before this Court under the exception to the preservation rule outlined under People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988].   We are unpersuaded.   Here, to the extent that defendant made statements casting doubt on his guilt during the plea allocution, County Court promptly conducted further inquiry to remove any such doubt and to ensure a knowing and voluntary plea on his part (see e.g. People v. Clavie, 28 A.D.3d 872, 873, 812 N.Y.S.2d 196 [2006];  People v. Chapple, 269 A.D.2d 621, 622, 704 N.Y.S.2d 163 [2000], lv. denied 94 N.Y.2d 917, 708 N.Y.S.2d 356, 729 N.E.2d 1155 [2000];  cf. People v. Pagan, 36 A.D.3d 1163, 1164, 828 N.Y.S.2d 665 [2007] ).  “Having failed to express, in any way, dissatisfaction with the court's remedial action, defendant has waived further challenge to the allocution, and thus no issue is preserved for our review” (People v. Lopez, 71 N.Y.2d at 668, 529 N.Y.S.2d 465, 525 N.E.2d 5 [citation omitted];  see People v. Clinton, 22 A.D.3d 887, 887, 802 N.Y.S.2d 538 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 450, 845 N.E.2d 1281 [2006];  People v. Wilson, 16 A.D.3d 781, 781, 790 N.Y.S.2d 760 [2005] ).   In any event, were we to consider's defendant's claim, we would find it to be without merit in that our review of the allocution reveals a knowing, voluntary and intelligent plea.

 Next, defendant's claim of ineffective assistance of counsel as it relates to the voluntary nature of his plea, although surviving his waiver of the right to appeal, is nevertheless unpreserved for review since he failed to move to withdraw the plea or vacate the judgment of conviction (see e.g. People v. Robinson, 42 A.D.3d 581, 581-582, 837 N.Y.S.2d 879 [2007];  People v. La Caille, 26 A.D.3d 592, 593, 811 N.Y.S.2d 132 [2006], lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 [2006];  People v. Epps, 255 A.D.2d 840, 682 N.Y.S.2d 247 [1998] ).   Were we to consider this argument, we would also find it to be without merit.   Nothing in the record suggests that defense counsel's representation was less than meaningful, particularly in light of the extremely advantageous plea received by defendant (see e.g. People v. Kagonyera, 23 A.D.3d 840, 841, 803 N.Y.S.2d 807 [2005];  People v. Frierson, 21 A.D.3d 1211, 1212, 801 N.Y.S.2d 441 [2005], lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 [2005];  People v. Thomas, 6 A.D.3d 754, 755, 773 N.Y.S.2d 621 [2004];  People v. Epps, supra ).

Defendant's remaining contentions, to the extent properly before us given the negotiated plea, have been reviewed and found to be meritless.

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CREW III, J.P., SPAIN, ROSE and LAHTINEN, JJ., concur.