| People v Dixon |
| 2009 NY Slip Op 07695 [66 AD3d 1237] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RonneyDixon, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Marc C. Kokosa of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Warren County (Hall, J.),rendered May 7, 2008, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and waived his right to appeal. According to the pleaagreement, defendant would be sentenced to five years in prison followed by two years ofpostrelease supervision; however, he would be permitted to withdraw his plea in the event thesentence imposed in a pending criminal matter in Washington County did not run concurrentlywith the proposed sentence in the instant matter. Thereafter, based upon the consecutive natureof the sentence imposed in Washington County, the instant sentence was renegotiated anddefendant was sentenced to a prison term of seven years—to run concurrently with theWashington County sentence—followed by two years of postrelease supervision.
Initially, we are unpersuaded by defendant's contention that his waiver of the right to appealwas invalidated by the renegotiation of the instant sentence. The record belies defendant'scontention that he withdrew his plea of guilty inasmuch as the sentencing minutes specify thatdefendant was "not looking to withdraw the plea."[*2]
Although defendant's challenge to the voluntariness ofthe plea is not precluded by the waiver of the right to appeal (see People v Seaberg, 74NY2d 1, 10 [1989]), his contention that his plea was not knowing, voluntary and intelligent isnot preserved for our review inasmuch as he did not move to withdraw his plea or vacate thejudgment of conviction (see People v Lopez, 295 AD2d 701, 701 [2002]). To the extentthat his claim of ineffective assistance of counsel survives the appeal waiver, it is similarlyunpreserved (see People vAnderson, 63 AD3d 1191, 1193 [2009]).
Finally, the appeal waiver precludes defendant's challenge to the severity of the sentenceimposed (see People v Platero, 63AD3d 1446, 1446 [2009]; People vTabbott, 61 AD3d 1183, 1184 [2009], lv denied 13 NY3d 750 [2009]).
Peters, Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.