People v. Perillo

300 A.D.2d 1097, 751 N.Y.S.2d 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2002
• Status: Published

Opinion

—Appeal from a judgment of Wayne County Court (Sirkin, J.), entered February 24, 2000, convicting defendant upon his plea of guilty of assault in the first 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 assault in the first degree (Penal Law § 120.10 [3]). “[WJhile defendant’s waiver of his right to appeal does not preclude judicial review of the voluntariness of his plea * * *, it does preclude review of his alleged denial of his right to the effective assistance of counsel except insofar as the alleged ineffectiveness impacted the voluntary nature of his plea” (People v Mingues, 256 AD2d 657, 657, lv denied 93 NY2d 974). The contention of defendant that he was denied effective assistance of counsel does not survive his waiver of the right to appeal where, as here, he failed to demonstrate that his plea was rendered involuntary by defense counsel’s failure to proceed with the probable cause hearing (see id.). Defendant further contends that his plea was not knowingly or voluntarily entered because County Court failed to advise him at the time of his plea that the bargained-for sentence would be followed by a period of postrelease supervision. By failing to move to withdraw his plea of guilty or vacate the judgment of conviction on that ground, defendant failed to preserve that contention for our review (see CPL 470.05 [2]; People v White, 296 AD2d 867; People v Roddy, 295 AD2d 965). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Present — Pigott, Jr., P.J., Green, Hayes, Scudder and Lawton, JJ.