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

1470
KA 11-00927
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ENNIS E. RUFFIN, DEFENDANT-APPELLANT.


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

ENNIS E. RUFFIN, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered October 7, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in or near school grounds.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal sale of a controlled substance in or near
school grounds (Penal Law § 220.44 [2]), defendant contends in his
main brief that his plea allocution was not factually sufficient.
Defendant, on appeal, does not challenge the validity of his waiver of
the right to appeal, however, and thus his contention is encompassed
by that waiver (see People v Lewandowski, 82 AD3d 1602, 1602). We
further conclude that “the challenge by defendant [in his main brief]
to the sufficiency of the evidence before the grand jury is forfeited
by his guilty plea” (People v Dickerson, 66 AD3d 1371, 1372, lv denied
13 NY3d 859; see People v Dunbar, 53 NY2d 868, 871).

     In addition, by pleading guilty, defendant forfeited his
contention in his pro se supplemental brief with respect to
preindictment prosecutorial misconduct (see People v Di Raffaele, 55
NY2d 234, 240; People v Oliveri, 49 AD3d 1208, 1209). Finally,
defendant contends in his pro se supplemental brief that he was denied
effective assistance of counsel. That contention does not survive his
guilty plea or his waiver of the right to appeal 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
                                 -2-                          1470
                                                         KA 11-00927

Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869 [internal quotation
marks omitted]).




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
