| People v Schwandner |
| 2009 NY Slip Op 08661 [67 AD3d 1481] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lisa L.Schwandner, Also Known as Lisa Trickey, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJuly 1, 2008. The judgment convicted defendant, upon her plea of guilty, of driving whileintoxicated, a class D felony.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty,of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2]; § 1193 [1][c] [former (ii)]). Contrary to the contention of defendant, we conclude that her waiver of theright to appeal was voluntarily, knowingly and intelligently entered (see People v Lopez,6 NY3d 248, 256 [2006]; People v Seaberg, 74 NY2d 1, 11-12 [1989]). The valid waiverof the right to appeal encompasses the further contention of defendant that County Court abusedits discretion in terminating her from the drug court program (see People v Rodriguez, 46AD3d 356 [2007], lv denied 10 NY3d 815 [2008]), as well as her challenge to theseverity of the sentence (see People v Hidalgo, 91 NY2d 733, 737 [1998]; People vHeer, 309 AD2d 1191 [2003], lv denied 1 NY3d 573 [2003]). To the extent that thecontention of defendant that she was denied effective assistance of counsel survives her guiltyplea and her waiver of the right to appeal (see People v Santos, 37 AD3d 1141 [2007],lv denied 8 NY3d 950 [2007]), we conclude that defendant failed to preserve hercontention for our review by failing to move to withdraw her plea or to vacate the judgment ofconviction on that ground (see People v Grandin, 63 AD3d 1604 [2009], lv denied13 NY3d 744 [2009]). Present—Smith, J.P., Peradotto, Green, Pine and Gorski, JJ.