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

728
KA 08-00229
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAKEYMO HODGE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH (MICHAEL D. MCCARTNEY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered June 7, 2004. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of attempted criminal
possession of a controlled substance in the third degree (Penal Law §§
110.00, 220.16 [1]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of attempted criminal
sale of a controlled substance in the third degree (§§ 110.00, 220.39
[1]). Defendant contends in each appeal that his plea was not
voluntarily, intelligently and knowingly entered because, inter alia,
County Court failed to conduct a factual colloquy and failed to ensure
that defendant understood his constitutional rights. Although
defendant filed a pro se motion to withdraw his plea prior to
sentencing, defendant voluntarily withdrew that motion before it was
ruled upon by the court, and he did not thereafter move to vacate the
judgments of conviction. Defendant therefore failed to preserve his
contention for our review (see People v Tantao, 41 AD3d 1274, lv
denied 9 NY3d 882; People v Aguayo, 37 AD3d 1081, lv denied 8 NY3d
981). We conclude that this case does not fall within the rare
exception to the preservation rule set forth in People v Lopez (71
NY2d 662, 666), “inasmuch as nothing in the plea colloquy casts
significant doubt on defendant’s guilt or the voluntariness of the
plea” (People v Lewandowski, 82 AD3d 1602, 1602). In any event, to
the extent that defendant’s contention is actually a challenge to the
factual sufficiency of the plea colloquy, we note that, “where, as
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                                                         KA 08-00229

here, [the] defendant pleads guilty to a crime less than that charged
in the indictment, a factual colloquy is not required” (People v
Harris, 233 AD2d 959, lv denied 89 NY2d 1094).

     Defendant’s further contention in each appeal that he was
deprived of effective assistance of counsel survives his plea only to
the extent “ ‘that the plea bargaining process was infected by any
allegedly ineffective assistance or that defendant entered the plea
because of [defense counsel’s] allegedly poor performance’ ” (People v
Fomby, 42 AD3d 894, 895). Thus, although defendant contends that
defense counsel was ineffective in several respects, only his
contention that defense counsel failed to advise him properly with
respect to his constitutional rights survives the plea, and that
contention is belied by the record. Finally, the sentence in each
appeal is not unduly harsh or severe.




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
