People v. Barnes

32 A.D.3d 1250, 821 N.Y.S.2d 541

Opinion

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered September 24, 2004. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree.

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

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of burglary in the third degree (Penal Law § 140.20), defendant contends that County Court erred in denying his motion to withdraw his guilty plea. Upon our review of the record, we conclude that defendant did not in fact move to withdraw his plea, and we reject his further contention that the court afforded him the opportunity to withdraw his plea but then refused to grant him that relief. The further contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty inasmuch as “[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney[’s] allegedly poor performance” (People v Burke, 256 AD2d 1244, 1244 [1998], lv denied 93 NY2d 851 [1999]). The sentence is not unduly harsh or severe. We have considered defendant’s remaining contention and conclude that it is without merit.

All concur, Hayes, J., not participating. Present — Hurlbutt, J.P, Scudder, Kehoe, Gorski and Hayes, JJ.