SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
845
KA 15-01171
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LATEEK NEWTON, DEFENDANT-APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.
DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wyoming County Court (Michael M.
Mohun, J.), rendered November 19, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted promoting prison
contraband 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, upon his
plea of guilty, of attempted promoting prison contraband in the first
degree (Penal Law §§ 110.00, 205.25 [2]), defendant contends that his
guilty plea was not voluntary, knowing and intelligent because County
Court failed to inquire into a possible defense. That contention is
actually a challenge to the factual sufficiency of the plea allocution
(see generally People v Hicks, 128 AD3d 1358, 1359, lv denied 27 NY3d
999; People v Rios, 93 AD3d 1349, 1349, lv denied 19 NY3d 966), and is
therefore encompassed by defendant’s valid waiver of the right to
appeal (see People v Jamison, 71 AD3d 1435, 1436, lv denied 14 NY3d
888; People v Peters, 59 AD3d 928, 928, lv denied 12 NY3d 820; see
generally People v Lopez, 6 NY3d 248, 256). Moreover, that contention
is not preserved for our review inasmuch as defendant failed to move
to withdraw his plea or to vacate the judgment of conviction (see
People v Lopez, 71 NY2d 662, 665; People v Lugg, 108 AD3d 1074, 1075).
This case does not fall within the rare exception to the preservation
requirement inasmuch as the plea allocution neither negated an
essential element of the crime nor otherwise cast doubt on the
voluntariness of the plea (see Lopez, 71 NY2d at 666).
To the extent that defendant’s contention that he was denied
effective assistance of counsel survives his guilty plea and valid
waiver of the right to appeal (see People v Strickland, 103 AD3d 1178,
1178), we conclude that it is without merit. “In the context of a
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KA 15-01171
guilty plea, a defendant has been afforded meaningful representation
when he or she receives an advantageous plea and nothing in the record
casts doubt on the apparent effectiveness of counsel” (People v Ford,
86 NY2d 397, 404), and that is the case here (see People v Garner, 86
AD3d 955, 956).
Entered: October 7, 2016 Frances E. Cafarell
Clerk of the Court