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

342
KA 13-00722
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FLOYD GASTON, DEFENDANT-APPELLANT.


THE GLENNON LAW FIRM, P.C., ROCHESTER (PETER J. GLENNON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered April 1, 2013. The judgment convicted defendant,
upon his plea of guilty, of attempted assault in the second 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 assault in the second degree (see
Penal Law §§ 110.00, 120.05 [7]). Defendant failed to move to
withdraw his plea or to vacate the judgment of conviction and thus
failed to preserve his challenge to the factual sufficiency of the
plea allocution (see People v Lopez, 71 NY2d 662, 665). After
defendant made statements at the plea proceeding casting doubt upon
his guilt, County Court did not accept the plea until it inquired
further into defendant’s possible justification defense. “Thus, the
court fulfilled its duty to make further inquiry to ensure that
defendant’s plea was knowingly, voluntarily and intelligently entered
. . . , and this case does not come within the narrow exception to the
preservation requirement” (People v Simmons, 294 AD2d 928, 929, lv
denied 98 NY2d 702; see People v Castanea, 265 AD2d 906, 906-907).
Defendant’s contention that he was denied effective assistance of
counsel does not survive the 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 [his] attorney[’s] allegedly poor performance” (People v
Gleen, 73 AD3d 1443, 1444, lv denied 15 NY3d 773 [internal quotation
marks omitted]). Defendant further contends that the indictment
should be dismissed because he appeared before the grand jury in
shackles and handcuffs. While that contention survives the guilty
plea, defendant abandoned it by pleading guilty before the court
decided that part of his motion seeking to dismiss the indictment on
                                 -2-                           342
                                                         KA 13-00722

that ground (see People v Williams, 90 AD3d 1514, 1515, lv denied 18
NY3d 999). Finally, the sentence is not unduly harsh or severe.




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
