People v. Lewandowski

• Decision Date: 25 March 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Arron W. LEWANDOWSKI, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1602

919 N.Y.S.2d 623

2011 N.Y. Slip Op. 02173

The PEOPLE of the State of New York, Respondent,

v.Arron W. LEWANDOWSKI, Defendant–Appellant.

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

March 25, 2011.

Michael A. Rosenhouse, Rochester, for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20), defendant contends that the photo array was unduly suggestive. Defendant “forfeited the right to raise [that contention on appeal] because he pleaded guilty before [County Court] issued its suppression ruling” ( People v. Fifield, 24 A.D.3d 1221, 1222, 807 N.Y.S.2d 256, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797). In any event, defendant failed to preserve his contention for our review, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see People v. Magin, 1 A.D.3d 1024, 767 N.Y.S.2d 366).

Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal ( see People v. Grimes, 53 A.D.3d 1055, 1056, 860 N.Y.S.2d 723, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101). In any event, defendant failed to preserve that challenge for our review by failing to move to withdraw the plea or to vacate the judgment of conviction ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). Although defendant's further contention that he is innocent and that his plea was coerced by defense counsel survives his valid waiver of the right to appeal ( see People v. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915), that contention is also unpreserved for our review ( see People v. Lando, 61 A.D.3d 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018). This case does not fall within the rare exception to the preservation rule set forth in Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea ( see People v. Loper, 38 A.D.3d 1178, 1179, 831 N.Y.S.2d 612). In any event, “defendant's assertions of innocence and coercion [are] conclusory and belied by [his] statements during the plea colloquy” ( Wright, 66 A.D.3d at 1334, 885 N.Y.S.2d 794).

The contention of defendant that he was denied effective assistance of counsel does not survive the plea or his valid waiver of the right to appeal because defendant “failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney['s] allegedly poor performance” ( People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [internal quotation marks omitted] ). In any event, the record establishes that defendant received meaningful representation ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

F...