| People v DeLuca |
| 2007 NY Slip Op 09239 [45 AD3d 777] |
| November 20, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesDeLuca, Appellant. |
—[*1] Michael E. Bongiorno, District Attorney, New City, N.Y. (Argiro Kosmetatos and Elana L.Yeger of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.),rendered July 19, 2006, convicting him of grand larceny in the fourth degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's waiver of his right to appeal precludes appellate review of the denial of hismotion to dismiss the indictment on the ground that he was deprived of his statutory right totestify before the grand jury (see Peoplev Harris, 15 AD3d 848 [2005]; People v Beaton, 303 AD2d 593, 594 [2003];People v Addison, 196 AD2d 875 [1993]). The waiver also precludes appellate review ofthe defendant's claims of ineffective assistance of counsel which did not affect the voluntarinessof his plea (see People v Scott, 39AD3d 570, 571 [2007]; People vEscobedo, 7 AD3d 539 [2004]; People v Demosthene, 2 AD3d 874 [2003]). In any event, bypleading guilty, the defendant forfeited his claim that he was denied his right to testify before thegrand jury (see People v Lopez, 6NY3d 248, 256-257 [2006]; People v Beaton, 303 AD2d at 594; People vStandley, 269 AD2d 614, 615 [2000]; People v Lyde, 247 AD2d 555 [1998]), and hisclaims of ineffective assistance of counsel which did not directly involve the plea-bargainingprocess (see People v Turner, 40AD3d 1018, 1019 [2007], lv denied 9 NY3d 882 [2007]; People v Silent, 37 AD3d 625[2007]; People v Gutierrez, 35AD3d 883, 884 [2006]).
To the extent that the defendant is claiming that the ineffective assistance of counselrendered his plea involuntary, his contention is based on matter dehors the record, which cannotbe [*2]reviewed on direct appeal (see People v Herdt, 45AD3d 698 [2007]; People v Rusielewicz, 45 AD3d 704 [2007]). Although the defendantmade a post-conviction motion to vacate the judgment pursuant to CPL article 440, the issuesraised in that motion are not properly before us, as he was denied leave to appeal from the denialof that motion (see People v Rivas, 206 AD2d 549, 550 [1994]; People vDaCosta, 217 AD2d 661, 662 [1995]; People v Esposito, 157 AD2d 850 [1990]).
Motion by the respondent to strike stated portions of the appellant's brief on an appeal from ajudgment of the County Court, Rockland County, rendered July 19, 2006, on the ground that theyrefer to matter dehors the record. By decision and order on motion of this Court dated August 9,2007, the motion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the respondent's motion is granted, and those portions of the appellant's briefthat refer to exhibits attached to the appellant's motion to vacate the judgment pursuant to CPLarticle 440, are stricken and have not been considered on appeal (see People v Waggoner,76 AD2d 847 [1980]). Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.