| People v DePalma |
| 2012 NY Slip Op 07158 [99 AD3d 1116] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v RobertDePalma, Respondent. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.),rendered June 7, 2011, convicting defendant upon his plea of guilty of the crimes of criminal saleof a controlled substance in the third degree and criminal sale of marihuana in the third degree.
In satisfaction of an 11-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and criminal sale of marihuana in the third degree. Aspart of the plea agreement, he executed a waiver of his right to appeal. Prior to sentencing, hemoved to withdraw his plea, arguing that his counsel failed to accurately advise him regardingthe possible sentence he might face if convicted following a trial. County Court denied themotion and defendant was subsequently sentenced to consecutive prison terms of six years and1½ years, respectively. He now appeals, and we affirm.
Defendant contends that County Court improperly enhanced his bargained-for sentence byordering that the two terms of imprisonment run consecutively rather than concurrently.Although this argument is not precluded by defendant's appeal waiver (see People v Nicholson, 50 AD3d1397, 1398 [2008], lv denied 11 NY3d 834 [2008]), it is unpreserved for our reviewas the record before us indicates that he did not move to withdraw his plea based upon thepotential for an enhanced sentence, nor did he object at sentencing or move thereafter to vacatethe judgment of conviction (see Peoplev Haynes, 14 AD3d 789, 790-791 [2005], lv denied 4 NY3d 831 [2005]).[*2]
Defendant further argues that his counsel was ineffectivein that he failed to explore alternatives to prison or to adequately explain the plea agreement todefendant. To the extent that this argument survives defendant's appeal waiver and is preservedby his motion to withdraw his plea, it is not supported by the record. Defendant's claim that hissentence is excessive is foreclosed by his valid appeal waiver (see People v Small, 82 AD3d1451, 1452 [2011], lv denied 17 NY3d 801 [2011]). His remaining contentions havebeen considered and found to be without merit.
Peters, P.J., Stein, Gary and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.