| People v Rivers |
| 2009 NY Slip Op 04290 [63 AD3d 423] |
| June 2, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bruce Rivers, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Bryan C. Hughes of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered May 14, 2008,convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, andsentencing him, as a second felony offender, to a term of five years, unanimously affirmed.
Since the final plea proceeding expressly incorporated by reference the allocution conductedat a prior plea proceeding, defendant's prior waiver of his right to appeal is enforceable (see People v Hickman, 57 AD3d370 [2008]; People vMorrison, 48 AD3d 288 [2008], lv denied 10 NY3d 867 [2008]), and itforecloses defendant's present procedural claim relating to his sentencing. Furthermore, asidefrom the waiver, defendant did not preserve his claim that when the court ordered his sentence tobe served consecutively to another sentence it misapprehended its discretion under Penal Law§ 70.25 (2-b) to impose a concurrent sentence upon a finding of mitigating circumstances(see People v Hamlet, 227 AD2d 203, 204 [1996], lv denied 88 NY2d 1021[1996]), and we decline to review it in the interest of justice. Defendant's ineffective assistanceof counsel claim is unreviewable on direct appeal because it involves matters outside the record(see People v Love, 57 NY2d 998 [1982]). Concur—Tom, J.P., Saxe, Sweeny,Acosta and Abdus-Salaam, JJ.