People v John Ballinger

People v Ballinger 2005 NY Slip Op 10143 [24 AD3d 792] December 27, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent,
v
John Ballinger, Appellant.

—[*1]Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered October 24, 2001, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence. By decision and order of this Court dated November 29, 2004, the matter was remitted to the County Court, Orange County, to hear and report on the defendant's motion to vacate the judgment of conviction, and the appeal was held in abeyance in the interim (see People v Ballinger, 12 AD3d 686 [2004]). The County Court has now complied.

Ordered that the judgment is affirmed.

By withdrawing his motion to vacate the judgment of conviction pursuant to CPL 440.10, the defendant failed to preserve any claim that his plea was not knowingly, voluntarily, and intelligently made (see People v Pellegrino, 60 NY2d 636 [1983]; People v Cook, 252 AD2d 595 [1998]; People v La Boy, 152 AD2d 866 [1989]).

The defendant's remaining contention was effectively waived by him as part of his plea bargain (see People v Callahan, 80 NY2d 273 [1992]; People v Seaberg, 74 NY2d 1 [1989]). Cozier, J.P., S. Miller, Santucci, Smith and Fisher, JJ., concur.