DEWIEL, TIMOTHY, PEOPLE v ( 2012 )


Menu:
  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1158
    KA 11-02473
    PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    TIMOTHY DEWIEL, DEFENDANT-APPELLANT.
    THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Erie County Court (Thomas P.
    Franczyk, J.), rendered September 15, 2011. The judgment convicted
    defendant, upon his plea of guilty, of attempted burglary in the
    second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed and the matter is remitted to Erie County Court
    for proceedings pursuant to CPL 460.50 (5).
    Memorandum: On appeal from a judgment convicting him upon his
    plea of guilty of attempted burglary in the second degree (Penal Law
    §§ 110.00, 140.25 [2]), defendant contends that he was denied his
    rights pursuant to CPL 380.50 (2) (e) at sentencing. That contention
    is encompassed by defendant’s valid waiver of the right to appeal (see
    People v Collier, 71 AD3d 909, 910, lv denied 15 NY3d 773; see
    generally People v Lanzara, 59 AD3d 936, 937, lv denied 12 NY3d 855).
    Also, defendant’s contention is unpreserved for our review inasmuch as
    it is “ ‘addressed merely to the adequacy of the procedures [County
    Court] used to arrive at its sentencing determination,’ ” and
    defendant failed to raise it in a timely manner before the court
    (People v Daniqua S.D., 92 AD3d 1226, 1227, quoting People v Callahan,
    80 NY2d 273, 281).
    Defendant’s contention that he was denied effective assistance of
    counsel does not survive his 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 Wright, 66 AD3d
    1334, 1334, lv denied 13 NY3d 912; see People v Rizek [appeal No. 1],
    64 AD3d 1180, 1180, lv denied 13 NY3d 862). In any event, defendant’s
    contention lacks merit inasmuch as he “receive[d] an advantageous plea
    -2-                          1158
    KA 11-02473
    and nothing in the record casts doubt on the apparent effectiveness of
    counsel” (People v Ford, 86 NY2d 397, 404). Finally, defendant failed
    to preserve for our review his contention that the court erred in
    failing to recuse itself (see People v Pett, 74 AD3d 1891, 1892;
    People v Lebron, 305 AD2d 799, 800, lv denied 100 NY2d 583). In any
    event, that contention is without merit (see generally People v
    Moreno, 70 NY2d 403, 405-406; People v Crane, 294 AD2d 867, 867, lv
    denied 98 NY2d 767; People v Brunner, 182 AD2d 1123, 1123, lv denied
    80 NY2d 828).
    Entered:   November 16, 2012                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-02473

Filed Date: 11/16/2012

Precedential Status: Precedential

Modified Date: 10/8/2016