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

1064
KA 13-01182
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL KING, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL KING, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered April 16, 2013. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class D felony.

     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 driving while intoxicated as a class D
felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and
sentencing him to an indeterminate term of incarceration of 1b to 5
years. Even assuming, arguendo, that defendant’s waiver of the right
to appeal was invalid and thus does not preclude our review of his
challenge to the severity of the sentence (see People v Davis, 114
AD3d 1166, 1167, lv denied 23 NY3d 1035; People v Theall, 109 AD3d
1107, 1108, lv denied 22 NY3d 1159), we nevertheless conclude that the
sentence is not unduly harsh or severe.

     Defendant contends in his pro se supplemental brief that he was
denied effective assistance of counsel. That contention does not
survive his guilty plea because defendant failed to demonstrate that
“the plea bargaining process was infected by [the] allegedly
ineffective assistance or that defendant entered the plea because of
[defense counsel’s] allegedly poor performance” (People v Lucieer, 107
AD3d 1611, 1612 [internal quotation marks omitted]; see People v
VanVleet, 140 AD3d 1633, 1633, lv denied 28 NY3d 938). In any event,
we conclude that “defendant was afforded meaningful representation
inasmuch as he ‘receive[d] an advantageous plea and nothing in the
record casts doubt on the apparent effectiveness of counsel’ ” (People
                                 -2-                          1064
                                                         KA 13-01182

v Cooper, 136 AD3d 1397, 1398, lv denied 27 NY3d 1067; see People v
Ford, 86 NY2d 397, 404; People v Parson, 122 AD3d 1441, 1443).

     We have considered defendant’s remaining contention, a challenge
to the court’s jurisdiction that survives the guilty plea and would
survive even a valid waiver of the right to appeal (see People v
Hansen, 95 NY2d 227, 230-231; see also People v Oliveri, 49 AD3d 1208,
1209; People v June, 30 AD3d 1016, 1017, lv denied 7 NY3d 813,
reconsideration denied 7 NY3d 868), and we conclude that the
contention is without merit.




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
