People v Viele

People v Viele 2015 NY Slip Op 05717 Decided on July 2, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 2, 2015
106557

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

PATRICK R. VIELE, Appellant.

Calendar Date: June 1, 2015
Before: Lahtinen, J.P., Lynch, Devine and Clark, JJ.

Linda A. Berkowitz, Saratoga Springs, for appellant.

G. Scott Walling, Special Prosecutor, Schenectady, for respondent.

Lahtinen, J.P.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered January 10, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the fifth degree.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in the fifth degree and waived his right to appeal. County Court thereafter sentenced him to time served and five years of probation. Defendant now appeals.

We affirm. To the extent that defendant challenges the validity of his appeal waiver, the plea colloquy and the counseled written waiver demonstrate that he knowingly, intelligently and voluntarily waived his right to appeal (see

People v Long, 117 AD3d 1326, 1326 [2014], lv denied 24 NY3d 1003 [2014]; People v Frasier, 105 AD3d 1079, 1080 [2013], lv denied 22 NY3d 1088 [2014]). Defendant's valid appeal waiver forecloses his claim of ineffective assistance of counsel, except insofar as the alleged ineffective assistance impacted upon the voluntariness of his plea (see People v Brooks, 118 AD3d 1123, 1124 [2014], lv denied 24 NY3d 959 [2014]; People v Livziey, 117 AD3d 1341, 1342 [2014]). Such claims regarding the voluntariness of his plea are unpreserved for our review, however, as the record does not reflect that he made an appropriate postallocution motion (see People v Terry, 122 AD3d 955, 956 [2014]; People v Osgood, 111 AD3d 1029, 1030 [2013], lv denied 22 NY3d 1089 [2014]). Further, to the extent that defendant alleges that his plea was not voluntary due to counsel's failure to move to dismiss the indictment on statutory speedy trial grounds, the record on appeal is inadequate to assess the merits of the claim, given [*2]the lack of any motion before County Court on the issue, and, therefore, it could only be raised in a CPL article 440 motion (see People v Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104 [2013]; People v Obert, 1 AD3d 631, 632 [2003], lv denied 2 NY3d 764 [2004]).

Lynch, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.