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

807
KA 13-01342
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH M. DILAURA, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH M. DILAURA, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered October 18, 2012. 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.

     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 the waiver of the
right to appeal is not valid and challenges the severity of the
sentence. Although the record establishes that defendant knowingly,
voluntarily and intelligently waived the right to appeal (see
generally People v Lopez, 6 NY3d 248, 256), we conclude that the valid
waiver of the right to appeal does not encompass the challenge to the
severity of the sentence because “no mention was made on the record
during the course of the allocution concerning the waiver of
defendant’s right to appeal his conviction that he was also waiving
his right to appeal the harshness of his sentence” (People v Pimentel,
108 AD3d 861, 862, lv denied 21 NY3d 1076; see People v Peterson, 111
AD3d 1412, 1412). Nevertheless, we reject defendant’s challenge to
the severity of the sentence.

     Defendant’s further contention in his pro se supplemental brief
that he was denied effective assistance of counsel does not survive
his plea and valid waiver of the right to appeal his conviction
inasmuch as “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
                                 -2-                           807
                                                         KA 13-01342

performance’ ” (People v Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d
912; see People v Hodge, 85 AD3d 1680, 1681, lv denied 18 NY3d 883;
People v Kearns, 50 AD3d 1514, 1515, lv denied 11 NY3d 790). Finally,
we reject defendant’s request that this direct appeal from the
judgment of conviction be decided in conjunction with a CPL article
440 motion that defendant has allegedly made in County Court. A
direct appeal cannot be consolidated with a motion pending in a trial
court.




Entered:   July 11, 2014                       Frances E. Cafarell
                                               Clerk of the Court
