People v Rivera

People v Rivera 2010 NY Slip Op 08650 [78 AD3d 1423] November 24, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

The People of the State of New York, Respondent, v Alexis Rivera, Appellant.

—[*1] Edward Fassett Jr., Duanesburg, for appellant.

Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Mercure, J. Appeal from a judgment of the Supreme Court (Sise, J.), rendered May 26, 2009 in Ulster County, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Defendant pleaded guilty to a superior court information charging him with one count of attempted burglary in the second degree and waived his right to appeal. Pursuant to the plea agreement, Supreme Court sentenced defendant as a second felony offender to a prison term of 3½ years and postrelease supervision of three years.[FN*] Defendant appeals from the original judgment of conviction. His sole arguments are that he received ineffective assistance of counsel and that the sentence imposed was harsh and excessive; we reject both. [*2]

Defendant's ineffective assistance claim survives his appeal waiver to the extent it implicates the voluntariness of his plea, but his failure to move to withdraw his guilty plea or vacate the judgment of conviction leaves it unpreserved for our review (see People v Singh, 73 AD3d 1384, 1385 [2010], lv denied 15 NY3d 809 [2010]; People v Garland, 69 AD3d 1122, 1123 [2010], lv denied 14 NY3d 887 [2010]). Defendant additionally concedes that his claim involves facts outside the record and, as such, it is more properly the subject of a CPL article 440 motion (see People v Bodah, 67 AD3d 1195, 1196 [2009], lv denied 14 NY3d 838 [2010]; People v Scitz, 67 AD3d 1251, 1252 [2009]). Finally, defendant's valid appeal waiver precludes his claim that the sentence imposed was harsh and excessive (see People v Singh, 73 AD3d at 1385).

Cardona, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed. Footnotes

Footnote *: Upon learning that the original term of postrelease supervision imposed was illegal, Supreme Court vacated the original sentence and resentenced defendant to the same term of imprisonment to be followed by postrelease supervision of five years (see e.g. People v Vaughns, 70 AD3d 1123, 1124 [2010], lv denied 15 NY3d 758 [2010]).