OLDSHIELD, SHAWNEE Q., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
360
KA 10-02501
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHAWNEE Q. OLDSHIELD, DEFENDANT-APPELLANT.
JAMES L. DOWSEY, III, ELLICOTTVILLE, FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (JOHN C. LUZIER
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered November 29, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree and criminal mischief in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following
his plea of guilty, of attempted assault in the second degree (Penal
Law §§ 110.00, 120.05 [2]) and criminal mischief in the fourth degree
(§ 145.00), defendant contends that he did not validly waive his right
to appeal. We reject that contention (see generally People v Lopez, 6
NY3d 248, 256), and his contention that he did not receive effective
assistance of counsel does not survive either the guilty plea or the
valid waiver of the right to appeal “because [t]here is no showing
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 Robinson, 39
AD3d 1266, 1267, lv denied 9 NY3d 869 [internal quotation marks
omitted]). Defendant further contends that his plea was not knowing,
voluntary and intelligent. Defendant, however, did not move to
withdraw his guilty plea or to vacate the judgment of conviction on
that ground and thus, although his contention survives the valid
waiver of the right to appeal, it is not preserved for our review (see
People v Zulian, 68 AD3d 1731, 1732, lv denied 14 NY3d 894). Upon our
review of the record, we conclude that this case does not fall within
the rare exception to the preservation requirement set forth in People
v Lopez (71 NY2d 662, 666).
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court