People v. Wyzykowski

• Decision Date: 26 September 2014
• Citation: 120 A.D.3d 1603,2014 N.Y. Slip Op. 06463,992 N.Y.S.2d 665
• Parties: The PEOPLE of the State of New York, Respondent, v. Barry WYZYKOWSKI, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1603

992 N.Y.S.2d 665

2014 N.Y. Slip Op. 06463

The PEOPLE of the State of New York, Respondent,

v.Barry WYZYKOWSKI, Defendant–Appellant.

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

Sept. 26, 2014.

Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered July 25, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal sexual act in the first degree.

Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree (Penal Law § 130.50[4] ). To the extent that defendant's contention that he was denied effective assistance of counsel at sentencing survives his guilty plea, we conclude that it lacks merit ( see People v. LaCroce, 83 A.D.3d 1388, 1388, 919 N.Y.S.2d 728, lv. denied 17 N.Y.3d 807, 929 N.Y.S.2d 567, 953 N.E.2d 805). Defendant failed to preserve for our review his contention that Supreme Court erred in failing to recuse itself ( see People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824, rearg. denied 4 N.Y.3d 795, 795 N.Y.S.2d 170, 828 N.E.2d 86; People v. Dewiel, 100 A.D.3d 1524, 1525, 954 N.Y.S.2d 329, lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328). In any event, that contention is without merit ( see generally People v. Glynn, 21 N.Y.3d 614, 618, 977 N.Y.S.2d 692, 999 N.E.2d 1137; People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200; People v. Williams, 57 A.D.3d 1440, 1441, 870 N.Y.S.2d 844, lv. denied12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

SCUDDER, P.J., PERADOTTO, CARNI, and VALENTINO, JJ., concur.