LEWANDOWSKI, ARRON W., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
177
KA 10-00022
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ARRON W. LEWANDOWSKI, DEFENDANT-APPELLANT.
MICHAEL A. ROSENHOUSE, ROCHESTER, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered November 9, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the third
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted burglary in the third degree (Penal Law §§
110.00, 140.20), defendant contends that the photo array was unduly
suggestive. Defendant “forfeited the right to raise [that contention
on appeal] because he pleaded guilty before [County Court] issued its
suppression ruling” (People v Fifield, 24 AD3d 1221, 1222, lv denied 6
NY3d 775). In any event, defendant failed to preserve his contention
for our review, and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
People v Magin, 1 AD3d 1024).
Defendant’s challenge to the factual sufficiency of the plea
allocution is encompassed by his valid waiver of the right to appeal
(see People v Grimes, 53 AD3d 1055, 1056, lv denied 11 NY3d 789). In
any event, defendant failed to preserve that challenge for our review
by failing to move to withdraw the plea or to vacate the judgment of
conviction (see People v Lopez, 71 NY2d 662, 665). Although
defendant’s further contention that he is innocent and that his plea
was coerced by defense counsel survives his valid waiver of the right
to appeal (see People v Wright, 66 AD3d 1334, lv denied 13 NY3d 912),
that contention is also unpreserved for our review (see People v
Lando, 61 AD3d 1389, lv denied 13 NY3d 746). This case does not fall
within the rare exception to the preservation rule set forth in Lopez
(71 NY2d at 666), inasmuch as nothing in the plea colloquy casts
significant doubt on defendant’s guilt or the voluntariness of the
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KA 10-00022
plea (see People v Loper, 38 AD3d 1178, 1179). In any event,
“defendant’s assertions of innocence and coercion [are] conclusory and
belied by [his] statements during the plea colloquy” (Wright, 66 AD3d
at 1334).
The contention of defendant that he was denied effective
assistance of counsel does not survive the 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 Gleen, 73 AD3d
1443, 1444, lv denied 15 NY3d 773 [internal quotation marks omitted]).
In any event, the record establishes that defendant received
meaningful representation (see generally People v Ford, 86 NY2d 397,
404).
Finally, defendant failed to preserve for our review his further
contention that he was arrested without probable cause (see People v
Ojo, 43 AD3d 1367, 1368, lv denied 10 NY3d 769, 11 NY3d 792), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Entered: March 25, 2011 Patricia L. Morgan
Clerk of the Court