People v. Lane

28 A.D.3d 1164, 813 N.Y.S.2d 329

Opinion

Appeal from a judgment of the Livingston County Court (Gerard J. Alonzo, Jr., J.), rendered December 23, 2004. The judgment convicted defendant, upon his plea of guilty, of course of sexual conduct against a child in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the second degree (Penal Law § 130.80). The contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty “inasmuch as ‘[tihere 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 Ginter, 23 AD3d 1064, 1065 [2005], lv denied 6 NY3d 776 [2006], quoting People v Burke, 256 AD2d 1244,1244 [1998], lv denied 93 NY2d 851 [1999]). By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his further contention that his plea was not knowingly and voluntarily entered {see People v Greenwood, 26 AD3d 796 [2006]). Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.