| People v Ivey |
| 2010 NY Slip Op 09580 [79 AD3d 1531] |
| December 30, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Warren Ivey, AlsoKnown as B, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 9, 2009, convicting defendant upon his plea of guilty of the crime of attempted criminalsale of a controlled substance in the third degree.
Defendant was charged in an indictment with one count of criminal sale of a controlled substance inthe third degree. He pleaded guilty to the reduced charge of attempted criminal sale of a controlledsubstance in the third degree in full satisfaction of the indictment and an unindicted charge. His guiltyplea included a waiver of the right to appeal. In consideration of his guilty plea, County Court agreed tosentence defendant to a determinate sentence of not more than five years in prison, with a two-yearperiod of postrelease supervision, and also agreed not to sentence defendant as a persistent felonyoffender. County Court thereafter sentenced defendant as a second felony offender to a term ofimprisonment of five years, to be followed by two years of postrelease supervision. Defendant nowappeals.
We affirm. Defendant's waiver of the right to appeal precludes his claim that he was denied theeffective assistance of counsel, except insofar as the argument relates to the voluntariness of his plea (see People v Belle, 74 AD3d 1477,1480 [2010]; People v Leigh, 71 [*2]AD3d 1288, 1288[2010], lv denied 15 NY3d 775 [2010]). To that extent, the issue is unpreserved for ourreview in light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction(see People v Singh, 73 AD3d1384, 1384-1385 [2010], lv denied 15 NY3d 809 [2010]; People v Glynn, 73 AD3d 1290, 1291[2010]). Moreover, reversal in the interest of justice is unwarranted inasmuch as the record reflects thatdefense counsel negotiated a favorable plea agreement and defendant had an opportunity to discuss theterms of the agreement with counsel and stated that he was satisfied with counsel's representation.Finally, defendant's waiver of the right to appeal precludes his remaining claims that County Courtshould have granted him judicial diversion to a substance abuse treatment program (see generally People v Lopez, 6 NY3d248, 255 [2006]; People v Hansen, 95 NY2d 227, 230 [2000]) and that his sentencewas harsh and excessive (see People vBoard, 75 AD3d 833, 834 [2010]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.