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

489
KA 10-01012
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

AUGUSTUS R. EAGLE, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment   of the Monroe County Court (Stephen T.
Miller, A.J.), rendered May   15, 2009. The judgment convicted
defendant, upon his plea of   guilty, of criminal possession of a
controlled substance in the   fifth 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 criminal possession of a controlled substance in the
fifth degree (Penal Law § 220.06 [1]), defendant contends that his
plea was not knowingly, intelligently and voluntarily entered because
his statement concerning defense counsel during the plea colloquy
created doubt as to the voluntariness of his plea. Defendant’s
contention survives his valid waiver of the right to appeal, but he
failed to preserve that contention for our review by failing to move
to withdraw the plea or to vacate the judgment of conviction (see
People v Ruffins, 78 AD3d 1627, 1628; People v Davis, 45 AD3d 1357,
1357-1358, lv denied 9 NY3d 1005). In any event, defendant’s
contention lacks merit. Although defendant responded “[n]o” during
the plea colloquy when the prosecutor asked if he was satisfied with
his attorney’s representation of him, he did not request new counsel,
nor did he raise any “ ‘serious complaints’ ” about his attorney
(People v Porto, 16 NY3d 93, 100). Indeed, in a plea agreement
document signed on the day of the plea, before the prosecutor
conducted the plea colloquy, defendant indicated that he was satisfied
with the representation provided by his attorney. Under those
circumstances, County Court was not required to make any inquiry with
respect to defendant’s response to the prosecutor’s question during
the plea colloquy (see id. at 99-100; see generally People v Sides, 75
NY2d 822, 824-825). Defendant’s contention regarding the factual
sufficiency of the plea allocution is encompassed by the valid waiver
                                 -2-                       489
                                                        KA 10-01012

of the right to appeal and it is unpreserved for our review (see
People v Rios, 93 AD3d 1349, 1349, lv denied 19 NY3d 966; People v
Williams, 91 AD3d 1299, 1299).




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
