PEOPLE v. KING

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Calvin M. KING, Defendant-Appellant.

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND HAYES, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Rebecca A. Crance of Counsel), for Defendant-Appellant. Donald H. Dodd, District Attorney, Oswego (Gregory S. Oakes of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of burglary in the third degree (Penal Law § 140.20).   The waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution (see People v. Spivey, 9 A.D.3d 886, 779 N.Y.S.2d 373, lv. denied 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682;  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).   To the extent that defendant contends that his plea was not voluntarily, knowingly and intelligently entered, that contention survives his waiver of the right to appeal, but defendant failed to preserve his contention for our review by moving to withdraw the plea or to vacate the judgment of conviction (see People v. McKay, 5 A.D.3d 1040, 1041, 773 N.Y.S.2d 923, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474;  DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140).   This case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5.   The waiver of the right to appeal also encompasses defendant's challenge to the severity of the sentence, including the restitution ordered, because the amount of restitution was included as part of the plea agreement (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Zimmerman, 12 A.D.3d 1105, 784 N.Y.S.2d 405, lv. denied 4 N.Y.3d 750, 790 N.Y.S.2d 662, 824 N.E.2d 63;  cf. People v. Lovett, 8 A.D.3d 1007, 778 N.Y.S.2d 243, lv. denied 3 N.Y.3d 677, 784 N.Y.S.2d 15, 817 N.E.2d 833).   In any event, defendant also failed to preserve for our review his challenge with respect to restitution (see People v. Gonzalez-Saez, 16 A.D.3d 1171, 792 N.Y.S.2d 745;  Zimmerman, 12 A.D.3d 1105, 784 N.Y.S.2d 405).   The contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty (see 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).   “There is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorneys' allegedly poor performance” (id. at 1244, 682 N.Y.S.2d 650).   In any event, we conclude that defendant received effective assistance of counsel (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

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

MEMORANDUM: