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

593
KA 10-01015
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREW P. SHUBERT, DEFENDANT-APPELLANT.


LAW OFFICES OF MAURICE J. VERRILLO, P.C., ROCHESTER (MAURICE J.
VERRILLO OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered May 11, 2009. The judgment convicted defendant,
upon his plea of guilty, of attempted rape in the first degree.

     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 attempted rape in the first degree (Penal Law §§
110.00, 130.35 [4]), defendant contends that his waiver of the right
to appeal was not knowing and voluntary. Even assuming, arguendo,
that the waiver of the right to appeal is invalid (see generally
People v Lopez, 6 NY3d 248, 256-257), we nevertheless conclude that
none of defendant’s contentions on appeal requires reversal or
modification. Contrary to defendant’s contention, the sentence is not
unduly harsh or severe. In addition, by failing to move to withdraw
the plea or to vacate the judgment of conviction, defendant failed to
preserve for our review his further contentions that the plea
allocution was factually insufficient (see People v Lopez, 71 NY2d
662, 665), and that the plea was not knowing and voluntary (see People
v Cruz, 81 AD3d 1300). In any event, the record establishes that
those contentions are without merit. Finally, to the extent that
defendant’s contention that he was denied effective assistance of
counsel is not forfeited by his plea of guilty (see People v Brown, 63
AD3d 1650), that contention also is without merit (see generally
People v Ford, 86 NY2d 397, 404). Defense counsel obtained an
advantageous plea offer and requested several breaks during the plea
proceeding in order to address defendant’s questions and concerns.
Indeed, defendant assured County Court that he was satisfied with the
                                 -2-                           593
                                                         KA 10-01015

representation that he received from defense counsel.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
