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

1360
KA 10-01771
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CURTIS W. ZOLNER, DEFENDANT-APPELLANT.


JAMES L. DOWSEY, III, WEST VALLEY, 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 July 19, 2010. The judgment convicted
defendant, upon his plea of guilty, of aggravated vehicular assault
and driving while intoxicated, a misdemeanor.

     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 aggravated vehicular assault (Penal Law §
120.04-a [2] [a]) and driving while intoxicated (Vehicle and Traffic
Law § 1192 [3]). The valid waiver by defendant of his right to appeal
encompasses his contention that County Court erred in refusing to
suppress his statement to the police (see People v Kemp, 94 NY2d 831,
833; People v Spencer, 87 AD3d 1284, 1285), as well as his challenge
to the factual sufficiency of the plea allocution (see People v
Simcoe, 74 AD3d 1858, lv denied 15 NY3d 778). Defendant’s further
contention that he was denied effective assistance of counsel with
respect to both assigned and retained defense counsel does not survive
the plea or 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 [the] allegedly poor performance[s by defense
counsel]” (People v Paduano, 84 AD3d 1730, 1731 [internal quotation
marks omitted]; see People v Bellamy, 85 AD3d 1395).

     Defendant’s contention that he was penalized for exercising his
right to be represented by counsel of his own choosing does not
implicate the voluntariness of the plea and thus it is also
encompassed by his valid waiver of the right to appeal (see People v
Doyle, 82 AD3d 564, lv denied 17 NY3d 805). In any event, that
contention is belied by the record (see generally People v Arroyave,
49 NY2d 264, 270). Finally, although the further contention of
defendant with respect to the voluntariness of his plea survives his
                                 -2-                          1360
                                                         KA 10-01771

waiver of the right to appeal, he failed to preserve that contention
for our review, and this case does not fall within the narrow
exception to the preservation requirement (see People v Morgan, 59
AD3d 950, lv denied 12 NY3d 857).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
