Appeal from an order of the Justice Court of the Village of Spring Valley, Rockland County (Alan M. Simon, J.), rendered February 4, 2008. The order granted defendant's motion to vacate the judgment convicting him of attempted possession of a sexual performance by a child.

Order reversed, on the law, defendant's motion to vacate the judgment of conviction denied, and judgment of conviction reinstated.

In August 2007, defendant moved, pursuant to section 440.10 of the Criminal Procedure Law, to vacate the judgment, rendered on October 21, 1999, convicting him of attempted possession of a sexual performance by a child (Penal Law §§ 110.00, 263.16). The issue concerning the sufficiency of the accusatory instrument was not
reviewable pursuant to section 440.10, as the facts appearing in the record with regard to this issue permitted adequate review thereof on an appeal from the judgment of conviction and defendant failed to set forth a justifiable excuse for failing to properly raise the issue by appeal (CPL 440.10 [2] [c]; see People v Cuadrado, 9 NY3d 362 [2007]).

We note that defendant's entry of a guilty plea to attempted possession of a sexual performance by a child constituted a waiver of the right to claim that the Justice Court failed to conduct a proper inquiry pursuant to section 180.50 (1) of the Criminal Procedure Law (People v Hunter, 5 NY3d 750 [2005]).

In view of the foregoing, the order granting defendant's motion to vacate the judgment of conviction is reversed, defendant's motion is denied, and the judgment of conviction is reinstated. [*2]

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: February 27, 2009