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

1158
KA 11-02473
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY DEWIEL, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered September 15, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Erie County Court
for proceedings pursuant to CPL 460.50 (5).

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that he was denied his
rights pursuant to CPL 380.50 (2) (e) at sentencing. That contention
is encompassed by defendant’s valid waiver of the right to appeal (see
People v Collier, 71 AD3d 909, 910, lv denied 15 NY3d 773; see
generally People v Lanzara, 59 AD3d 936, 937, lv denied 12 NY3d 855).
Also, defendant’s contention is unpreserved for our review inasmuch as
it is “ ‘addressed merely to the adequacy of the procedures [County
Court] used to arrive at its sentencing determination,’ ” and
defendant failed to raise it in a timely manner before the court
(People v Daniqua S.D., 92 AD3d 1226, 1227, quoting People v Callahan,
80 NY2d 273, 281).

     Defendant’s contention that he was denied effective assistance of
counsel does not survive his plea or his valid waiver of the right to
appeal 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 his
attorney[’s] allegedly poor performance’ ” (People v Wright, 66 AD3d
1334, 1334, lv denied 13 NY3d 912; see People v Rizek [appeal No. 1],
64 AD3d 1180, 1180, lv denied 13 NY3d 862). In any event, defendant’s
contention lacks merit inasmuch as he “receive[d] an advantageous plea
                                 -2-                          1158
                                                         KA 11-02473

and nothing in the record casts doubt on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404). Finally, defendant failed
to preserve for our review his contention that the court erred in
failing to recuse itself (see People v Pett, 74 AD3d 1891, 1892;
People v Lebron, 305 AD2d 799, 800, lv denied 100 NY2d 583). In any
event, that contention is without merit (see generally People v
Moreno, 70 NY2d 403, 405-406; People v Crane, 294 AD2d 867, 867, lv
denied 98 NY2d 767; People v Brunner, 182 AD2d 1123, 1123, lv denied
80 NY2d 828).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
