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

975
KA 10-01843
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID JACKSON, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered June 3, 2010. The judgment convicted
defendant, upon his plea of guilty, of rape 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 rape in the first degree (Penal Law § 130.35 [1]),
defendant contends that his plea was not knowing, intelligent, and
voluntary. Defendant failed to move to withdraw his plea or to vacate
the judgment of conviction on that ground and thus has failed to
preserve his contention for our review (see People v Francis, 53 AD3d
1112, 1113, lv denied 11 NY3d 736). This case does not fall within
the narrow exception to the preservation requirement set forth in
People v Lopez (71 NY2d 662, 666). In any event, defendant’s
contention lacks merit (see People v Moorer, 63 AD3d 1590, 1591, lv
denied 13 NY3d 837; People v Jones, 42 AD3d 968, 968). Defendant’s
further contention that he was denied effective assistance of counsel
does not survive his plea of guilty inasmuch as “[t]here is no showing
that the plea bargaining process was infected by any allegedly
ineffective assistance or that defendant entered the plea because of
his attorney[’s] allegedly poor performance” (People v Burke, 256 AD2d
1244, 1244, lv denied 93 NY2d 851; see People v Barnes, 32 AD3d 1250,
1251).

     We agree with defendant that his waiver of the right to appeal is
invalid and thus does not encompass his challenge to the severity of
the period of postrelease supervision. “[I]t is not clear that ‘the
trial court engaged in a full and adequate colloquy, and [that]
defendant expressly waived [his] right to appeal without limitation’ ”
(People v Maracle, 19 NY3d 925, 928; see generally People v Hidalgo,
91 NY2d 733, 737), and defendant’s waiver of the right to appeal also
                                 -2-                           975
                                                         KA 10-01843

is invalid “inasmuch as the record fails to establish that ‘defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty’ ” (People
v Balkum, 71 AD3d 1594, 1595, lv denied 14 NY3d 885; see People v
Daniels, 68 AD3d 1711, 1712, lv denied 14 NY3d 887; People v Williams,
59 AD3d 339, 340, lv denied 12 NY3d 861). Nevertheless, we reject
defendant’s challenge to the severity of the period of postrelease
supervision.




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
