
    The People of the State of New York, Respondent, v Bienvenido Rodriquez, Appellant.
    [786 NYS2d 755]
   Appeal from a judgment of the Onondaga County Court (Anthony E Aloi, J.), rendered February 25, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree.

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

Memorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]). We agree with County Court that, in light of the clear and unambiguous record on appeal, the affidavit of trial counsel does not raise a question of fact whether defendant was tried on the superseding indictment rather than the original indictment. We determined that issue on a prior appeal (People v Rodriquez, 299 AD2d 875 [2002]) and see no reason to depart from that determination (see generally People v Wallace, 298 AD2d 130, 131 [2002], lv denied 99 NY2d 565 [2002]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Martoehe and Hayes, JJ.  