Opinion
2012-12-28
The PEOPLE of the State of New York, Respondent, v. Ennis E. RUFFIN, Defendant–Appellant.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedOctober 7, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in or near school grounds. Robert M. Pusateri, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for Defendant–Appellant. Ennis E. Ruffin, Defendant–Appellant Pro Se.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedOctober 7, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in or near school grounds.
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.
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 A.D.3d 1602, 1602, 919 N.Y.S.2d 623). 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 A.D.3d 1371, 1372, 887 N.Y.S.2d 387,lv. denied13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98;see People v. Dunbar, 53 N.Y.2d 868, 871, 440 N.Y.S.2d 613, 423 N.E.2d 36).
In addition, by pleading guilty, defendant forfeited his contentionin his pro se supplemental brief with respect to preindictment prosecutorial misconduct ( see People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513;People v. Oliveri, 49 A.D.3d 1208, 1209, 856 N.Y.S.2d 354). 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. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814,lv. denied9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [internal quotation marks omitted] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.