| People v Aitken |
| 2012 NY Slip Op 08832 [101 AD3d 1383] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald J.Aitken, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered April 14,2011 in Delaware County, convicting defendant upon his plea of guilty of the crime of arson inthe third degree (seven counts).
Defendant was charged in a 21-count indictment with various crimes stemming from hisinvolvement in a series of burglaries and arsons, which included breaking into and setting fire toa local church. In full satisfaction thereof, defendant subsequently pleaded guilty to seven countsof arson in the third degree and waived his right to appeal. Although the People recommendedconsecutive prison terms of 1 to 3 years on each count, Supreme Court made no commitment asto sentencing. Upon reviewing the presentence investigation report and accompanying victimimpact statements, Supreme Court imposed an aggregate prison term of 19 to 57 years. Thisappeal by defendant ensued.
We affirm. Defendant does not dispute that he validly waived his right to appeal, and ourreview of the record reveals that the underlying waiver encompassed both defendant's convictionand sentence. The record further reflects that "defendant was aware of his sentencing exposureand that no specific sentencing commitment had been made" (People v Budwick, 82 AD3d 1447, 1448 [2011], lv denied17 NY3d 857 [2011]). Accordingly, defendant's present challenge to the severity of his sentenceis precluded by his valid appeal waiver (see id. at 1448; People v Sofia, 62 AD3d 1159,1160 [2009]; compare People vTesar, 65 AD3d 716, 717[*2][2009]), and we declinedefendant's invitation to modify the sentence imposed as a matter of discretion in the interest ofjustice.
As for defendant's ineffective assistance of counsel claim, even assuming such claim impactsupon the voluntariness of his plea and, hence, survives his waiver of appeal, there is noindication on this record that defendant moved to withdraw his plea or vacate the judgment ofconviction. Accordingly, this issue is unpreserved for our review (see People v Flake, 95 AD3d1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Ildefonso, 89 AD3d1327, 1327 [2011]). In any event, the record reflects that counsel obtained a favorable pleaagreement for defendant and that defendant, in turn, indicated that he had been affordedsufficient time to confer with counsel and was satisfied with his services (see People vFlake, 95 AD3d at 1372; People vShurock, 83 AD3d 1342, 1344 [2011]). Thus, were we to reach this issue, we wouldconclude that defendant received meaningful representation.
Mercure, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.