People v. Lugg

• Decision Date: 05 July 2013
• Citation: 968 N.Y.S.2d 785,2013 N.Y. Slip Op. 05133,108 A.D.3d 1074
• Parties: The PEOPLE of the State of New York, Respondent, v. Tevieae T. LUGG, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 1074

968 N.Y.S.2d 785

2013 N.Y. Slip Op. 05133

The PEOPLE of the State of New York, Respondent,

v.Tevieae T. LUGG, Defendant–Appellant.

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

July 5, 2013.

Rebecca L. Wittman, Utica, for Defendant–Appellant.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a plea of guilty of rape in the second degree (Penal Law § 130.30 [1] ). We note that defendant's challenges to the jurisdictional requirements of the waiver of indictment and the superior court information need not be preserved for our review ( see People v. Boston, 75 N.Y.2d 585, 589 n. 2, 555 N.Y.S.2d 27, 554 N.E.2d 64;People v. Finch, 96 A.D.3d 1485, 1486, 946 N.Y.S.2d 378;People v. Waid, 26 A.D.3d 734, 734–735, 809 N.Y.S.2d 330,lv. denied6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384), and those challenges are also not precluded by defendant's valid waiver of his right to appeal ( see Finch, 96 A.D.3d at 1486, 946 N.Y.S.2d 378;People v. Harris, 267 A.D.2d 1008, 1009, 701 N.Y.S.2d 195). Contrary to defendant's contention, however, the record establishes that he entered a valid waiver of indictment, and freely and voluntarily consented to be prosecuted by way of a superior court information ( seeCPL 195.10, [108 A.D.3d 1075]195.20; People v. Burney, 93 A.D.3d 1334, 1334, 940 N.Y.S.2d 507;see generally People v. Davis, 84 A.D.3d 1645, 1646, 923 N.Y.S.2d 364,lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95). Additionally, defendant's contention that the superior court information was jurisdictionally defective lacks merit ( see generallyCPL 200.15; People v. Menchetti, 76 N.Y.2d 473, 475, 560 N.Y.S.2d 760, 561 N.E.2d 536).

Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by the valid waiver of appeal and is unpreserved for our review inasmuch as defendant did not move to withdraw the plea or vacate the judgment of conviction on that ground ( see People v. Rios, 93 A.D.3d 1349, 1349, 940 N.Y.S.2d 512,lv. denied19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216). Although the contention of defendant that his guilty plea was not knowingly, voluntarily and intelligently entered survives his waiver of the right to appeal, because defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground, he failed to preserve that contention for our review ( see Burney, 93 A.D.3d at 1334, 940 N.Y.S.2d 507;People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5. Defendant's further contention that he was denied effective assistance of counsel does not survive either the plea of guilty or the waiver by defendant of the right to appeal because he failed to demonstrate that “the plea bargaining process was infected by [th...