| People v Haynes |
| 2010 NY Slip Op 00871 [70 AD3d 718] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Haynes, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered July 30, 2008, convicting him of attempted burglary in the second degree, upon his pleaof guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his adjudication as a persistent violent felony offender wasinvalid because the predicate statement filed by the People failed to set forth any tolling periods,while relying on a conviction that was more than 10 years old (see CPL 400.15 [2]).However, his valid waiver of his right to appeal precludes him from challenging the legality ofthe procedure used in sentencing him as a persistent violent felony offender (see People v Lassiter, 48 AD3d700 [2008]; People v Backus,43 AD3d 409, 410 [2007]). Further, the defendant's contention that the omission of thetolling information rendered his plea less than knowing, voluntary, and intelligent is unpreservedfor appellate review because he did not move to withdraw his plea on this basis (see People vClarke, 93 NY2d 904, 906 [1999]; People v Velez, 64 AD3d 799 [2009]; People v Bolton, 63 AD3d 1087[2009]; People v Kornegay, 60AD3d 696 [2009]). In any event, the defendant does not dispute that his incarceration waslong enough that the prior sentence was imposed within the 10-year limitation period. Under thecircumstances, the omission of the tolling information in the statement was harmless (seePeople v Bouyea, 64 NY2d 1140, 1142 [1985]; People v Kelly, 65 AD3d 886, 889 [2009], lv denied 13NY3d 860 [2009]; People vWhaley, 44 AD3d 1079 [2007]).
The defendant's valid waiver of his right to appeal precludes review of his contention that hisadjudication as a persistent violent felony offender violated the principles announced inApprendi v New Jersey (530 US 466 [2000]; see People v Andre L., 18 AD3d 575, 576 [2005]).
The defendant's valid waiver of his right to appeal also precludes appellate review of hiscontention that he was denied the effective assistance of counsel, except to the extent that thealleged ineffective assistance of counsel may have affected the voluntariness of his plea (see People v Perazzo, 65 AD3d1058, 1059 [2009]; People vVelez, 64 AD3d 799 [2009]). Moreover, to the extent the contention is premised on hisattorney's alleged failure to investigate, it involves matter dehors the record and is not [*2]properly presented on direct appeal (see People v Gallo, 54 AD3d 964,965 [2008]; People v Holland, 44AD3d 874 [2007]). To the extent that the claim can be reviewed, and involves an allegedeffect on the voluntariness of his plea of guilty, the defendant was afforded meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vFord, 86 NY2d 397, 404 [1995]). Skelos, J.P., Santucci, Dickerson and Roman, JJ., concur.