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

1251
KA 14-00785
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD W. REINARD, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


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

DONALD W. REINARD, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered June 8, 2010. The judgment convicted defendant,
upon his plea of guilty, of course of sexual conduct against a child
in the first degree and attempted sexual abuse in the first degree
(two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him, upon his plea of guilty, of one count of course of
sexual conduct against a child in the first degree (Penal Law §
130.75 [1] [a]) and two counts of attempted sexual abuse in the first
degree (§§ 110.00, 130.65 [3]). In appeal No. 2, defendant appeals
from a judgment convicting him, upon his plea of guilty, of course of
sexual conduct against a child in the first degree (§ 130.75 [1] [a]).

     In his main and pro se supplemental briefs, defendant contends in
both appeals that his respective waivers of the right to appeal were
not valid. We reject those contentions. County Court’s plea
colloquies, together with the written waivers of the right to appeal,
establish that defendant’s waivers of the right to appeal were made
knowingly, intelligently, and voluntarily (see People v Johnson, 122
AD3d 1324, 1324; People v Arney, 120 AD3d 949, 949).

     In both appeals, defendant contends in his main and pro se
supplemental briefs that his respective pleas were involuntarily
entered. Although those contentions survive his valid waivers of the
right to appeal, they are not preserved for our review inasmuch as
                                 -2-                          1251
                                                         KA 14-00785

defendant failed to move to withdraw the respective pleas or to vacate
the judgments of conviction (see People v Guantero, 100 AD3d 1386,
1387, lv denied 21 NY3d 1004; People v Connolly, 70 AD3d 1510, 1511,
lv denied 14 NY3d 886), and nothing in the plea colloquies casts
significant doubt on defendant’s guilt or the voluntariness of his
pleas, and the narrow exception to the preservation requirement
therefore does not apply (see People v Lopez, 71 NY2d 662, 666; People
v Lewandowski, 82 AD3d 1602, 1602).

     In both appeals, the valid waivers of the right to appeal
encompass defendant’s challenges in his main and pro se supplemental
briefs to the severity of the sentences (see People v Hidalgo, 91 NY2d
733, 737). Defendant’s contentions in his pro se supplemental brief
that the sentences in both appeals were imposed in violation of the
United States Constitution also survive his valid waivers of the right
to appeal (see People v Lopez, 6 NY3d 248, 255), but we reject those
contentions inasmuch as it cannot be said that the sentences are
“grossly disproportionate to the crime[s]” (People v Broadie, 37 NY2d
100, 111, cert denied 423 US 950; see generally People v Thompson, 83
NY2d 477, 484).

     Contrary to defendant’s contention in his pro se supplemental
brief in appeal No. 1, his waiver of indictment and consent to be
prosecuted under a superior court information was not jurisdictionally
defective (see generally CPL 195.10 [1] [b]; People v D’Amico, 76 NY2d
877, 879).

     Defendant’s challenges in both appeals to the constitutionality
of various statutes were not preserved for our review inasmuch as they
were not raised during proceedings in County Court (see People v
Whitehead, 46 AD3d 715, 716, lv denied 10 NY3d 772). In any event,
those challenges are not properly before us inasmuch as defendant
failed to notify the Attorney General that he would be making those
challenges (see People v Mills, 117 AD3d 1555, 1556, lv denied 24 NY3d
1045, reconsideration denied 24 NY3d 1121; Whitehead, 46 AD3d at 716).

     Defendant’s contention in his pro se supplemental brief that he
was denied effective assistance of counsel in both appeals does not
survive his guilty pleas or the waivers of the right to appeal because
defendant “failed to demonstrate that ‘the plea bargaining process was
infected by [the] allegedly ineffective assistance or that [he]
entered the plea because of his attorney[’s] allegedly poor
performance’ ” (People v Grandin, 63 AD3d 1604, 1604, lv denied 13
NY3d 744). We have reviewed the remaining contentions in both appeals
in defendant’s pro se supplemental brief and conclude that they do not
require reversal or modification of the judgments.




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
