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

828
KA 12-00501
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHRISTOPHER J. FEIDNER, DEFENDANT-APPELLANT.


KELIANN M. ARGY-ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered December 22, 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 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]). Defendant’s contention that he was
denied effective assistance of counsel does not survive his guilty
plea because “[t]here is no showing 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 Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d
869 [internal quotation marks omitted]). Even assuming, arguendo,
that defendant purported to preserve for appellate review his
challenge to the legal sufficiency of the evidence, we would not
entertain that challenge on this appeal from the judgment entered upon
his guilty plea; indeed, “it would be logically inconsistent to permit
a defendant to enter a plea of guilty based on particular admitted
facts, yet to allow that defendant contemporaneously to reserve the
right to challenge on appeal the sufficiency of those facts to support
a conviction, had there been a trial” (People v Plunkett, 19 NY3d 400,
405-406). Moreover, we agree with the People that defendant’s
challenge to the weight of the evidence is “inapplicable” inasmuch as
he was convicted upon his plea of guilty, rather than upon a verdict
following a trial (cf. People v Danielson, 9 NY3d 342, 349). Finally,
the sentence is not unduly harsh or severe.

Entered:   September 27, 2013                      Frances E. Cafarell
                                                   Clerk of the Court
