People v. Heinig

Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered September 30, 2003. The judgment revoked defendant’s probation and imposed a sentence of incarceration. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment, entered upon his admission of a violation of probation, revoking the term of probation imposed upon his conviction of welfare fraud in the third degree (Penal Law § 158.15) and sentencing him to a term of incarceration. In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fifth degree (§ 220.06 [5]). The record establishes that defendant validly waived his right to appeal with respect to both judgments (see People v Williams, 15 AD3d 863 [2005]). That waiver encompasses his challenge to the factual sufficiency of the plea allocution with respect to criminal possession of a controlled substance (see People v Turner, 16 AD3d 1150 [2005]; People v Chrispen, 306 AD2d 916 [2003], lv denied 100 NY2d 619 [2003]) and his contention that County Court exhibited bias against him in suggesting an amendment to the violation of probation petition (see People v McCafferty, 1 AD3d 799 [2003], lv denied 2 NY3d 743 [2004]). By pleading guilty, defendant forfeited his contentions with respect to the alleged insufficiency of the evidence of his guilt (see People v Taylor, 65 NY2d 1, 5 [1985]; People v Hill, 220 AD2d 905, 906 [1995]) and the alleged violation of his due process rights based on the People’s failure to disclose exculpatory evidence (see People v Day, 150 AD2d 595, 600 [1989], lv denied 74 NY2d 807 [1989]). Although defendant’s jurisdictional challenge to the superior court information in appeal No. 2 survives both the waiver of the right to appeal and the guilty plea (see People v Sayles, 292 AD2d 641, 643 [2002], lv denied 98 NY2d 681 [2002]; see also People v Kohl, 19 AD3d 1155 [2005]), the record fails to support that jurisdictional challenge (see People v Hunt, 5 AD3d 1021, 1022 [2004]; People v Chad S., 237 AD2d 986 [1997], lv denied 90 NY2d 856 [1997]). The record also fails to support defendant’s contention that the plea agreement was not honored. We reject the contention of defendant that defense counsel’s failure to [1298] inquire into the weight of the cocaine seized from him or to seek suppression of the cocaine constitutes ineffective assistance of counsel (see People v Strempack, 71 NY2d 1015, 1016 [1988]). We have examined defendant’s remaining contentions, including those raised in the pro se supplemental brief, and conclude that none requires reversal. Present—Green, J.P., Scudder, Kehoe, Smith and Lawton, JJ.