         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1264
KA 11-00011
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WALTER A. GARDNER, III, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THERESA L. PREZIOSO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered December 10, 2010. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree
and resisting arrest.

     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 assault in the second degree (Penal Law §
120.05 [3]) and resisting arrest (§ 205.30). Defendant first contends
that his plea was not knowingly, intelligently and voluntarily entered
because he never admitted during the plea colloquy that he intended to
prevent a police officer from performing a lawful duty or that he in
fact caused injury to an officer. “That contention is actually a
challenge to the factual sufficiency of the plea allocution, which is
encompassed by defendant’s valid waiver of the right to appeal”
(People v Thomas, 72 AD3d 1483, 1483). In any event, defendant also
failed to preserve that contention for our review inasmuch as he
failed to move to withdraw the plea or to vacate the judgment of
conviction (see People v Lewandowski, 82 AD3d 1602, 1602). “Although
defendant’s initial factual allocution may have negated an essential
element of the crime, this case does not fall within the exception to
the preservation rule because the court conducted the requisite
further inquiry and defendant did not thereafter raise any further
objections” (People v Jennings, 8 AD3d 1067, 1068, lv denied 3 NY3d
676).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. Assuming, arguendo, that defendant’s
contention otherwise survives the guilty plea and his waiver of the
right to appeal, we conclude that he received meaningful
                                 -2-                          1264
                                                         KA 11-00011

representation (see generally People v Ford, 86 NY2d 397, 404). To
the extent that defendant contends that defense counsel’s alleged
failure to communicate with him constituted ineffective assistance, it
is based upon matters outside the record and thus may only be raised
by way of a motion pursuant to CPL article 440 (see People v Frazier,
63 AD3d 1633, 1634, lv denied 12 NY3d 925).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
