        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

638
KA 12-01020
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TEVIEAE T. LUGG, DEFENDANT-APPELLANT.


REBECCA L. WITTMAN, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered August 19, 2005. The judgment convicted
defendant, upon his plea of guilty, of rape in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a plea of guilty of rape in the second degree (Penal Law § 130.30
[1]). We note that defendant’s challenges to the jurisdictional
requirements of the waiver of indictment and the superior court
information need not be preserved for our review (see People v Boston,
75 NY2d 585, 589 n 2; People v Finch, 96 AD3d 1485, 1486; People v
Waid, 26 AD3d 734, 734-735, lv denied 6 NY3d 839), and those
challenges are also not precluded by defendant’s valid waiver of his
right to appeal (see Finch, 96 AD3d at 1486; People v Harris, 267 AD2d
1008, 1009). Contrary to defendant’s contention, however, the record
establishes that he entered a valid waiver of indictment, and freely
and voluntarily consented to be prosecuted by way of a superior court
information (see CPL 195.10, 195.20; People v Burney, 93 AD3d 1334,
1334; see generally People v Davis, 84 AD3d 1645, 1646, lv denied 17
NY3d 815). Additionally, defendant’s contention that the superior
court information was jurisdictionally defective lacks merit (see
generally CPL 200.15; People v Menchetti, 76 NY2d 473, 475).

     Defendant’s challenge to the factual sufficiency of the plea
allocution is encompassed by the valid waiver of appeal and is
unpreserved for our review inasmuch as defendant did not move to
withdraw the plea or vacate the judgment of conviction on that ground
(see People v Rios, 93 AD3d 1349, 1349, lv denied 19 NY3d 966).
Although the contention of defendant that his guilty plea was not
knowingly, voluntarily and intelligently entered survives his waiver
of the right to appeal, because defendant did not move to withdraw the
                                 -2-                           638
                                                         KA 12-01020

plea or to vacate the judgment of conviction on that ground, he failed
to preserve that contention for our review (see Burney, 93 AD3d at
1334; People v Russell, 55 AD3d 1314, 1314-1315, lv denied 11 NY3d
930). Contrary to defendant’s contention, this case does not fall
within the narrow exception to the preservation requirement set forth
in People v Lopez (71 NY2d 662, 666). Defendant’s further contention
that he was denied effective assistance of counsel does not survive
either the plea of guilty or the waiver by defendant of the right to
appeal because he failed to demonstrate that “the plea bargaining
process was infected by [the] allegedly ineffective assistance or that
he entered the plea because of his attorney[’s] allegedly poor
performance” (People v Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d
869 [internal quotation marks omitted]; see Burney, 93 AD3d at 1334).




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
