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

1183
KA 11-01149
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL J. JUDD, JR., DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM 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 March 7, 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 modified as a matter of discretion in the interest of
justice by vacating the fine and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of attempted burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). Initially, we agree with defendant
that his waiver of the right to appeal is invalid inasmuch as “ ‘the
minimal inquiry made by County Court was insufficient to establish
that the court engage[d] the defendant in an adequate colloquy to
ensure that the waiver of the right to appeal was a knowing and
voluntary choice’ ” (People v Jones, 107 AD3d 1589, 1589, lv denied 21
NY3d 1075; see People v Amir W., 107 AD3d 1639, 1640).

     By pleading guilty, defendant waived his contention that he was
improperly arraigned on the special information based on the court’s
error in stating that he would be pleading guilty to attempted
burglary in the third degree. A “ ‘guilty plea . . . results in a
forfeiture of the right to appellate review of any nonjurisdictional
defects in the proceedings’ ” (People v Leary, 70 AD3d 1394, 1395, lv
denied 14 NY3d 889, quoting People v Fernandez, 67 NY2d 686, 688; see
People v Releford, 73 AD3d 1437, 1438, lv denied 15 NY3d 808), which
include any defect in the arraignment procedure (see People v
Williams, 25 Misc 3d 15, 18; see generally People v Roberts, 6 AD3d
942, 943, lv denied 3 NY3d 662).

     Although the waiver of the right to appeal was invalid and thus
does not bar defendant’s challenge to the guilty plea, defendant
                                 -2-                          1183
                                                         KA 11-01149

failed to preserve for our review his challenge to the factual
sufficiency of the plea colloquy (see People v Lopez, 71 NY2d 662,
665; People v Spears, 106 AD3d 1534, 1535). Contrary to defendant’s
further contention, this case does not fall within the rare exception
to the preservation requirement set forth in Lopez because nothing in
the plea allocution calls into question the voluntariness of the plea
or casts “significant doubt” upon his guilt (id. at 666; see People v
Lewandowski, 82 AD3d 1602, 1602).

     With respect to defendant’s further contention that he was denied
effective assistance of counsel, such a claim survives a plea of
guilty only if “the plea bargaining process was infected by [the]
allegedly ineffective assistance or [if] defendant entered the plea
because of his attorney[’s] allegedly poor performance” (People v
Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869 [internal quotation
marks omitted]; see People v Lugg, 108 AD3d 1074, 1075; People v
Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d 912). Here, defendant
failed to establish that the plea was infected by or was the result of
the allegedly ineffective acts of his attorney. In any event, the
record establishes that defendant received “an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404).

     Defendant further contends that the court erred at sentencing in
denying his request to redact the presentence report by changing the
initial charge listed in that report, and he asks this Court to remit
the matter to County Court for further proceedings to amend the report
and ensure its accuracy. “[A]bsent any indication that the court
relied upon allegedly erroneous information in the presentence report
in imposing the sentence” (People v Jaramillo, 97 AD3d 1146, 1148, lv
denied 19 NY3d 1026), we perceive no reason to grant defendant’s
request for that relief. In addition, defendant failed to preserve
for our review his contention that he was not properly adjudicated a
second violent felony offender based on the failure of the People and
the court to comply with CPL 400.15 (see People v Hall, 82 AD3d 1619,
1620, lv denied 16 NY3d 895; see also People v Butler, 96 AD3d 1367,
1368, lv denied 20 NY3d 931; see generally People v Pellegrino, 60
NY2d 636, 637). In any event, “[t]he statutory purposes for filing a
predicate statement (CPL 400.21) have been satisfied, to wit:
apprising the court of the prior conviction and providing defendant
with reasonable notice and an opportunity to be heard. The People’s
failure to file a predicate statement was harmless, and remanding for
filing and resentencing would be futile and pointless” (People v
Bouyea, 64 NY2d 1140, 1142).

     We agree, however, with defendant’s additional contention that
the sentence is excessive insofar as it imposes a fine in addition to
a term of incarceration and postrelease supervision. Consequently, we
modify the judgment by vacating the fine. As modified, the sentence
is not unduly harsh or severe.

Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
