People v Allison

People v Allison 2010 NY Slip Op 03608 [72 AD3d 1577] April 30, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

The People of the State of New York, Respondent,
v
Kyle Allison, Appellant.

—[*1] Michael B. Jones, Buffalo, for defendant-appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered October 18, 2007. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, following a plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends that he was denied effective assistance of counsel. That contention does not survive defendant's plea of guilty and the valid waiver by defendant of the right to appeal inasmuch as defendant does not contend 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 [2009], lv denied 13 NY3d 912 [2009]). Furthermore, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]), and this case does not fall within the rare exception to the preservation requirement (id. at 666). Finally, the waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]). Present—Scudder, P.J., Martoche, Lindley, Green and Gorski, JJ.