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

311
KA 10-00521
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LANCE R. BISHOP, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LANCE R. BISHOP, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered June 4, 2009. The judgment convicted defendant,
upon his plea of guilty, of manslaughter 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 plea of guilty, of manslaughter in the first degree (Penal
Law § 125.20 [1]). Although the defendant’s contention that his plea
was not knowing, intelligent, or voluntary survives his waiver of the
right to appeal, defendant failed to preserve his contention for our
review inasmuch as he failed to move to withdraw the plea or to vacate
the judgment of conviction (see People v Watkins, 77 AD3d 1403, 1403,
lv denied 15 NY3d 956). Furthermore, “[n]othing in the plea
allocution raised the possibility that [a justification defense was]
applicable in this case, and defendant’s contention therefore does not
fall within the narrow exception to the preservation rule” (People v
Hart, 114 AD3d 1273, ___; cf. People v Ponder, 34 AD3d 1314, 1315; see
generally People v Lopez, 71 NY2d 662, 666).

     Defendant’s challenge to the alleged amendment to the indictment
is similarly unavailing. Although the indictment was amended at the
beginning of the plea proceeding to reflect the charge to which
defendant ultimately pleaded guilty under the agreement, we conclude
that County Court’s reference to an incorrect Penal Law provision,
while referring to the crime of manslaughter in the first degree by
name, was akin to a mere “misnomer in the designation of the crime
charged,” which does not create a jurisdictional defect (People v
Rodriguez, 97 AD3d 246, 252, lv denied 19 NY3d 1028). Thus,
                                 -2-                           311
                                                         KA 10-00521

defendant’s uncontested waiver of the right to appeal precludes his
challenge to the court’s failure to recite the applicable provision
(see People v Cullen, 62 AD3d 1155, 1157, lv denied 13 NY3d 795) and,
in any event, the court’s misstatement “ ‘[is] an irregularity’ ” that
does not survive defendant’s plea of guilty (Rodriguez, 97 AD3d at
252; see People v Judd, 111 AD3d 1421, 1422; see generally People v
Iannone, 45 NY2d 589, 600-601).

     The ineffective assistance of counsel claims contained in
defendant’s pro se supplemental brief do not survive his plea and
waiver of the right to appeal, because defense counsel’s allegedly
poor performance did not infect the plea bargaining process (see
People v Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d 912; see also
People v Hodge, 85 AD3d 1680, 1681, lv denied 18 NY3d 883; People v
Kearns, 50 AD3d 1514, 1515, lv denied 11 NY3d 790). Furthermore, to
the extent that many of his contentions involve matters outside the
record on appeal, we note that they must be raised by way of a motion
pursuant to CPL 440.10 (see People v Russell, 83 AD3d 1463, 1465, lv
denied 17 NY3d 800).

     We have reviewed defendant’s remaining contentions in his pro se
supplemental brief and conclude that none requires modification or
reversal of the judgment.




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
