BURNEY, CARMEN C., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
357
KA 11-00398
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CARMEN C. BURNEY, DEFENDANT-APPELLANT.
JAMES L. DOWSEY, III, ELLICOTTVILLE, FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered January 31, 2011. The judgment convicted
defendant, upon her plea of guilty, of attempted assault in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [2]). Contrary to defendant’s
contention, the record shows that she entered a valid waiver of
indictment, and freely and voluntarily consented to be prosecuted by
way of a superior court information (see CPL 195.10, 195.20; see
generally People v Davis, 84 AD3d 1645, 1646, lv denied 17 NY3d 815;
People v McKenzie, 51 AD3d 823). Although the contention of defendant
that her guilty plea was not knowingly, voluntarily and intelligently
entered survives her waiver of the right to appeal, defendant did not
move to withdraw the plea or to vacate the judgment of conviction and
thus failed to preserve that contention for our review (see People v
Russell, 55 AD3d 1314, 1314-1315, lv denied 11 NY3d 930; People v
Harrison, 4 AD3d 825, lv denied 2 NY3d 740). Defendant’s further
contention that she 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 she failed to demonstrate that “the plea
bargaining process was infected by [the] allegedly ineffective
assistance or that defendant entered the plea because of [her]
attorney[’s] allegedly poor performance” (People v Robinson, 39 AD3d
1266, 1267, lv denied 9 NY3d 869 [internal quotation marks omitted]).
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court