| People v Rivera |
| 2010 NY Slip Op 08650 [78 AD3d 1423] |
| November 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alexis Rivera,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the Supreme Court (Sise, J.), rendered May 26, 2009 inUlster County, convicting defendant upon his plea of guilty of the crime of attempted burglary in thesecond degree.
Defendant pleaded guilty to a superior court information charging him with one count of attemptedburglary in the second degree and waived his right to appeal. Pursuant to the plea agreement, SupremeCourt sentenced defendant as a second felony offender to a prison term of 3½ years andpostrelease supervision of three years.[FN*]Defendant appeals from the original judgment of conviction. His sole arguments are that he receivedineffective assistance of counsel and that the sentence imposed was harsh and excessive; we rejectboth.[*2]
Defendant's ineffective assistance claim survives his appealwaiver to the extent it implicates the voluntariness of his plea, but his failure to move to withdraw hisguilty plea or vacate the judgment of conviction leaves it unpreserved for our review (see People v Singh, 73 AD3d 1384,1385 [2010], lv denied 15 NY3d 809 [2010]; People v Garland, 69 AD3d 1122, 1123 [2010], lv denied 14NY3d 887 [2010]). Defendant additionally concedes that his claim involves facts outside the recordand, as such, it is more properly the subject of a CPL article 440 motion (see People v Bodah, 67 AD3d 1195,1196 [2009], lv denied 14 NY3d 838 [2010]; People v Scitz, 67 AD3d 1251, 1252 [2009]). Finally, defendant's validappeal waiver precludes his claim that the sentence imposed was harsh and excessive (see People vSingh, 73 AD3d at 1385).
Cardona, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Upon learning that the original termof postrelease supervision imposed was illegal, Supreme Court vacated the original sentence andresentenced defendant to the same term of imprisonment to be followed by postrelease supervision offive years (see e.g. People v Vaughns, 70AD3d 1123, 1124 [2010], lv denied 15 NY3d 758 [2010]).