THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TREVON LUGG DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TREVON A. LUGG, DEFENDANT–APPELLANT.

KA 12–01017

Decided: July 19, 2013

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ. REBECCA L. WITTMAN, UTICA, FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law § 155.35[1] ), defendant contends that his waiver of indictment was invalid because the subsequent guilty plea was to a crime not charged in the superior court information (SCI) or contained within the waiver of indictment.   We reject that contention.   The SCI charged defendant with grand larceny in the third degree for cashing forged checks at a bank in Utica in an amount exceeding $5,700, and the waiver of indictment in fact specified that grand larceny in the third degree was included therein (see CPL 195.20).   To the extent that defendant is challenging the sufficiency of the factual allocution, his contention is unpreserved for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665).   We note in any event that, upon further inquiry by County Court, defendant admitted to cashing the checks in Utica (see generally id. at 666).   Defendant further contends that he was denied effective assistance of counsel.   To the extent that his contention survives his plea of guilty (see People v. Nieves, 299 A.D.2d 888, 889, lv denied 99 N.Y.2d 631), we conclude that it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404).

Frances E. Cafarell

Clerk of the Court