| People v Mackey |
| 2010 NY Slip Op 09682 [79 AD3d 1680] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joe A.Mackey, Jr., Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Michael D. McCartney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), rendered June23, 2008. The judgment convicted defendant, upon his plea of guilty, of falsifying businessrecords in the first degree.
It is hereby ordered that the appeal from the judgment insofar as it imposed a sentence ofincarceration is dismissed and the judgment is otherwise unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty offalsifying business records in the first degree (Penal Law § 175.10). Defendant failed tomove to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve forour review his contention that the plea was not knowingly, voluntarily and intelligently entered(see People v Nagel, 60 AD3d1485 [2009], lv denied 12 NY3d 918 [2009]; People v Collins, 45 AD3d 1472 [2007], lv denied 10NY3d 861 [2008]). Contrary to defendant's further contention, this case does not fall within thenarrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662,666 [1988]). To the extent that the contention of defendant that he was denied effectiveassistance of counsel is not forfeited by the plea (see People v Santos, 37 AD3d 1141 [2007], lv denied 8NY3d 950 [2007]), it is lacking in merit (see generally People v Ford, 86 NY2d 397, 404[1995]).
We dismiss the appeal to the extent that defendant challenges the severity of the sentenceinasmuch as he has completed serving his sentence and that part of the appeal therefore is moot(see People v Griffin, 239 AD2d 936 [1997]). We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Smith, J.P., Centra, Fahey,Peradotto and Pine, JJ.