PEOPLE v. BALLINGER

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

The PEOPLE, etc., respondent, v. John BALLINGER, appellant.

Decided: December 27, 2005

BARRY A. COZIER, J.P., SONDRA MILLER, FRED T. SANTUCCI, NANCY E. SMITH, and STEVEN W. FISHER, JJ. Michele Marte-Indzonka, Newburgh, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Catherine A. Walsh of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.) rendered October 24, 2001, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.   By decision and order of this court dated November 29, 2004, the matter was remitted to the County Court, Orange County, to hear and report on the defendant's motion to vacate the judgment of conviction, and the appeal was held in abeyance in the interim (see People v. Ballinger, 12 A.D.3d 686, 785 N.Y.S.2d 121).   The County Court has now complied.

ORDERED that the judgment is affirmed.

By withdrawing his motion to vacate the judgment of conviction pursuant to CPL 440.10, the defendant failed to preserve any claim that his plea was not knowingly, voluntarily, and intelligently made (see People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Cook, 252 A.D.2d 595, 675 N.Y.S.2d 384;  People v. La Boy, 152 A.D.2d 866, 544 N.Y.S.2d 505).

The defendant's remaining contention was effectively waived by him as part of his plea bargain (see People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022).

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