PEOPLE v. HEINIG

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Frederick J. HEINIG, Defendant-Appellant.  (Appeal No. 1.)

Decided: September 30, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND LAWTON, JJ. Peter J. DiGiorgio, Jr., Utica, for Defendant-Appellant. Frederick J. Heinig, Defendant-Appellant Pro Se. John H. Crandall, Sr., District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Plaintiff-Respondent.

 In appeal No. 1, defendant appeals from a judgment, entered upon his admission of a violation of probation, revoking the term of probation imposed upon his conviction of welfare fraud in the third degree (Penal Law § 158.15) and sentencing him to a term of incarceration.   In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ).   The record establishes that defendant validly waived his right to appeal with respect to both judgments (see People v. Williams, 15 A.D.3d 863, 789 N.Y.S.2d 591).   That waiver encompasses his challenge to the factual sufficiency of the plea allocution with respect to criminal possession of a controlled substance (see People v. Turner, 16 A.D.3d 1150, 790 N.Y.S.2d 916;  People v. Chrispen, 306 A.D.2d 916, 761 N.Y.S.2d 913, lv. denied 100 N.Y.2d 619, 767 N.Y.S.2d 402, 799 N.E.2d 625) and his contention that County Court exhibited bias against him in suggesting an amendment to the violation of probation petition (see People v. McCafferty, 1 A.D.3d 799, 767 N.Y.S.2d 292, lv. denied 2 N.Y.3d 743, 778 N.Y.S.2d 468, 810 N.E.2d 921). By pleading guilty, defendant forfeited his contentions with respect to the alleged insufficiency of the evidence of his guilt (see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755;  People v. Hill, 220 A.D.2d 905, 906, 632 N.Y.S.2d 691) and the alleged violation of his due process rights based on the People's failure to disclose exculpatory evidence (see People v. Day, 150 A.D.2d 595, 600, 541 N.Y.S.2d 463, lv. denied 74 N.Y.2d 807, 546 N.Y.S.2d 565, 545 N.E.2d 879).   Although defendant's jurisdictional challenge to the superior court information in appeal No. 2 survives both the waiver of the right to appeal and the guilty plea (see People v. Sayles, 292 A.D.2d 641, 643, 739 N.Y.S.2d 475, lv. denied 98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235;  see also People v. Kohl, 19 A.D.3d 1155, 798 N.Y.S.2d 276), the record fails to support that jurisdictional challenge (see People v. Hunt, 5 A.D.3d 1021, 1022, 773 N.Y.S.2d 721;  People v. Chad S., 237 A.D.2d 986, 656 N.Y.S.2d 990, lv. denied 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057).   The record also fails to support defendant's contention that the plea agreement was not honored.   We reject the contention of defendant that defense counsel's failure to inquire into the weight of the cocaine seized from him or to seek suppression of the cocaine constitutes ineffective assistance of counsel (see People v. Strempack, 71 N.Y.2d 1015, 1016, 530 N.Y.S.2d 100, 525 N.E.2d 746).   We have examined defendant's remaining contentions, including those raised in the pro se supplemental brief, and conclude that none requires reversal.

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

MEMORANDUM: