People v. McDermott

133 A.D.2d 931, 520 N.Y.S.2d 646, 1987 N.Y. App. Div. LEXIS 51976

Opinion

Mahoney, P. J.

Appeal from a judgment of the County Court of Chemung County (Danaher, Jr., J.), rendered August 12, 1985, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, then an inmate at Elmira Correctional Facility, was charged with promoting prison contraband in the first degree based on allegations that he possessed a homemade weapon. He pleaded guilty to a reduced charge of attempted promoting prison contraband in the first degree. Defendant now appeals.

Defendant’s guilty plea operates as a waiver of his claim that the failure to file with the Secretary of State the standards of inmate behavior, which prohibited possession of the homemade weapon, rendered the indictment defective (see, People v Motley, 69 NY2d 870). Further, defendant’s claim that he was denied the effective assistance of counsel since his attorney failed to move, prior to the guilty plea, for dismissal of the indictment on this ground is without merit. This court has already rejected this argument on the merits (People v Rodriguez, 126 AD2d 896; People v Simms, 124 AD2d 349). Thus, the failure to raise the issue did not prejudice defendant.

Judgment affirmed. Mahoney, P. J., Kane, Weiss, Mikoll and Harvey, JJ., concur.