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

1193
KA 10-00420
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

NELSON VILLANEUVA, DEFENDANT-APPELLANT.


DAVID M. PALMIERE, ROCHESTER, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered February 3, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the first
degree.

     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 attempted burglary in the first degree
(Penal Law §§ 110.00, 140.30 [3]). Defendant’s contention that he was
denied effective assistance of counsel does not survive the guilty
plea where, as here, “ ‘there 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 Jackson, ___ AD3d ___, ___ [Oct. 5, 2012],
quoting People v Burke, 256 AD2d 1244, 1244, lv denied 93 NY2d 851).
We reject defendant’s further contention that the sentence is unduly
harsh and severe.




Entered:    November 9, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
