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

103
KA 10-01011
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JEFFREY A. HAVERS, DEFENDANT-APPELLANT.


JAMES L. DOWSEY, III, ELLICOTTVILLE (KELIANN M. ELNISKI OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered June 8, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted sexual abuse in the
first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of attempted sexual abuse in the first degree
(Penal Law §§ 110.00, 130.65 [3]). Although defendant’s contention
that his plea was not voluntarily, knowingly and intelligently entered
survives his valid waiver of the right to appeal, defendant failed to
move to withdraw his guilty plea or to vacate the judgment of
conviction and thus failed to preserve that contention for our review
(see People v Zulian, 68 AD3d 1731, lv denied 14 NY3d 894). We reject
defendant’s contention that this is one of those rare cases in which
the exception to the preservation requirement applies (see People v
Lopez, 71 NY2d 662, 666). Defendant’s further contention that he was
denied effective assistance of counsel does not survive his guilty
plea or his valid waiver of the right to appeal 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 performance’ ”
(People v Wright, 66 AD3d 1334, lv denied 13 NY3d 912). Finally, to
the extent that defendant challenges County Court’s suppression ruling
following the Huntley hearing, his valid waiver of the right to appeal
encompasses that ruling (see People v Kemp, 94 NY2d 831, 833; People v
Gilbert, 17 AD3d 1164, lv denied 5 NY3d 762).


Entered:   February 10, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
