People v. Pandori

ROSE, J.

Linda A. Berkowitz, Saratoga Springs, for appellant.

M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs, for respondent.

Opinion

ROSE, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered May 13, 2014, convicting

defendant upon his plea of guilty of the crime of grand larceny in the third degree.

Defendant waived indictment, pleaded guilty to a superior court information charging him with grand larceny in the third degree and waived his right to appeal. County Court thereafter sentenced him to five years of probation. Defendant now appeals.

We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was invalid. Both County Court and the written waiver informed him of the separate and distinct nature of the right to appeal, and County Court confirmed that defendant had discussed the waiver with counsel and understood its ramifications. Therefore, we conclude that defendant knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Fligger,117 A.D.3d 1343, 1344, 986 N.Y.S.2d 689 [2014], lv. denied23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014]; People v. Chavis,117 A.D.3d 1193, 1193–1194, 987 N.Y.S.2d 111 [2014]). Although defendant's remaining claim—that his plea was not voluntarily entered due to the ineffective assistance of counsel—survives his appeal waiver, it is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Smith,119 A.D.3d 1088, 1089, 988 N.Y.S.2d 724 [2014], lv. denied24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014]; People v. Livziey,117 A.D.3d 1341, 1342, 986 N.Y.S.2d 686 [2014]). To the extent that his claim addresses matters outside the record, they are more properly the subject of a CPL article 440 motion (see People v. Stroman,107 A.D.3d 1023, 1025, 967 N.Y.S.2d 202 [2013], lv. denied21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013]; People v. Planty,85 A.D.3d 1317, 1318, 925 N.Y.S.2d 240 [2011], lv. denied17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011]).

ORDERED that the judgment is affirmed.

McCARTHY, J.P., DEVINEand CLARK, JJ., concur.