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People v. Allison

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


April 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KYLE ALLISON, APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered October 18, 2007. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 9, 2010

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

Memorandum

On appeal from a judgment convicting him, following a plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends that he was denied effective assistance of counsel. That contention does not survive defendant's plea of guilty and the valid waiver by defendant of the right to appeal inasmuch as defendant does not contend 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 Wright, 66 AD3d 1334 [2009], lv denied 13 NY3d 912 [2009]). Furthermore, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]), and this case does not fall within the rare exception to the preservation requirement (id. at 666). Finally, the waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]).

Present---Scudder, P.J., Martoche, Lindley, Green and Gorski, JJ.

20100430

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