People v Wiley

People v Wiley 2013 NY Slip Op 08153 Decided on December 5, 2013 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: December 5, 2013
105159

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

v

DONNA M. WILEY, Appellant.

Calendar Date: November 12, 2013
Before: Rose, J.P., McCarthy, Spain and Egan Jr., JJ.


Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent
Stark of counsel), for respondent.

MEMORANDUM AND ORDER


McCarthy, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered June 5, 2012, convicting defendant upon her plea of guilty of the crime of grand larceny in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to grand larceny in the third degree, waived the right to appeal her conviction and sentence and was subsequently sentenced to 2 to 6 years in prison. Defendant now appeals, contending that she was denied the effective assistance of counsel and the sentence imposed was harsh and excessive.

We affirm. While defendant's argument that she received the ineffective assistance of counsel survives her appeal waiver, we find it unpreserved for our review in light of the absence of proof on this record that she made a motion to withdraw her guilty plea or vacate her judgment of conviction (see People v Youngblood, 107 AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078 [2013]; People v Lazore, 102 AD3d 1017, 1017-1018 [2013]; People v Walton, 101 AD3d 1489, 1490 [2012], lv denied 20 NY3d 1105 [2013]). Defendant is precluded from raising her claim of harsh and excessive sentence given her unchallenged waiver of the right to appeal (see People v Mattison, 94 AD3d 1157, 1158 [2012]; People v Shurock, 83 AD3d 1342, 1344 [2011]).

Rose, J.P., Spain and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.