SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
91
KA 11-01597
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMES FOX, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered July 22, 2011. The judgment convicted defendant,
upon his plea of guilty, of failure to register as a sex offender.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of failure to register as a sex offender
(Correction Law §§ 168-f [4]; 168-t). By failing to move to withdraw
his plea or to vacate the judgment of conviction, defendant failed to
preserve for our review his contention that his statement during the
allocution concerning a potential suppression issue rendered the plea
involuntary (see People v Lopez, 71 NY2d 662, 667-668). In any event,
defendant’s contention lacks merit because the record establishes
that, following an inquiry by County Court, he affirmatively waived
his right to challenge the admissibility of his statement to the
police (see generally People v Mackie, 54 AD3d 651, 652, lv denied 11
NY3d 898). Defendant’s further contention that defense counsel’s
failure to move to suppress the statement at issue deprived him of
meaningful representation does not survive his plea because there is
no indication that the plea was infected by defense counsel’s alleged
ineffectiveness (see People v La Bar, 16 AD3d 1084, 1085, lv denied 5
NY3d 764). We note, in any event, that such a motion would have had
little chance of success on these facts, and thus defense counsel was
not ineffective for failing to make a motion on that basis (see
generally People v Caban, 5 NY3d 143, 152).
Entered: February 8, 2013 Frances E. Cafarell
Clerk of the Court