| People v Monaghan |
| 2012 NY Slip Op 08969 [101 AD3d 1686] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bobbie J.Monaghan, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Aaron D. Carr of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered June21, 2011. The judgment convicted defendant, upon her plea of guilty, of vehicular manslaughter in thefirst degree and vehicular assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of vehicularmanslaughter in the first degree (Penal Law § 125.13 [1]) and vehicular assault in the first degree(§ 120.04 [1]), defendant contends that her sentence is unduly harsh and severe. We reject thatcontention. We note as an initial matter that defendant's waiver of the right to appeal does notencompass her challenge to the severity of the sentence because she purportedly waived her right toappeal before County Court advised her of the maximum sentence she could receive (see People v Farrell, 71 AD3d 1507,1507 [2010], lv denied 15 NY3d 804 [2010]; People v Rizek [appeal No. 1], 64AD3d 1180 [2009], lv denied 13 NY3d 862 [2009]). Nevertheless, we reject defendant'schallenge to the severity of the sentence.
Defendant further contends that she received ineffective assistance of counsel. To the extent thatsuch contention survives her plea of guilty and waiver of the right to appeal (see People v Gimenez, 59 AD3d 1088,1089 [2009], lv denied 12 NY3d 816 [2009]), it is not properly before us because it involvesmatters outside the record on appeal and thus must be raised by way of a motion pursuant to CPLarticle 440 (see People v Johnson, 81AD3d 1428, 1428 [2011], lv denied 16 NY3d 896 [2011]). Present—Scudder,P.J., Centra, Fahey, Carni and Valentino, JJ.