| People v Ortiz |
| 2013 NY Slip Op 01684 [104 AD3d 1202] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vKenneth R. Ortiz, Appellant. (Appeal No. 1.) |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedSeptember 26, 2011. The judgment convicted defendant, upon his plea of guilty, ofgrand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofgrand larceny in the fourth degree (Penal Law § 155.30 [1]), defendant contendsthat he was denied effective assistance of counsel based upon the failure of his originalattorney to facilitate his testimony before the grand jury and by his new attorney's failureto move to dismiss the indictment pursuant to CPL 190.50 (5) (c) based upon the allegedviolation of his right to testify before the grand jury. Inasmuch as that contention doesnot impact the voluntariness of defendant's plea, it is foreclosed by his waiver of the rightto appeal (see People vBonner, 21 AD3d 1184, 1185-1186 [2005], lv denied 6 NY3d 773[2006]; People v Carroll, 21AD3d 586, 586-587 [2005]) and the guilty plea (see People v Turner, 40 AD3d 1018, 1019 [2007], lvdenied 9 NY3d 882 [2007]; People v Vincent, 305 AD2d 1108, 1109[2003], lv denied 100 NY2d 588 [2003]). In addition, because "defendantpleaded guilty with the assistance of new counsel, he forfeited the right to argue that hewas denied the opportunity to testify before the grand jury as the result of the priorattorney's conduct" (People vWeems, 61 AD3d 472, 472 [2009], lv denied 13 NY3d 750 [2009]; see People v Moore, 61 AD3d494, 495 [2009], lv denied 12 NY3d 918 [2009]).
We reject defendant's contention that the fine imposed as part of his sentence isillegal in view of the People's concession that the stolen property was returned and herealized no financial gain from the crime (see People v McFarlane, 18 AD3d 577, 578 [2005], lvdenied 5 NY3d 791 [2005]). Defendant's further contention that the amount of thefine is unduly harsh and severe survives his waiver of the right to appeal because thatamount was not included in the terms of the plea bargain (see People v Etkin,284 AD2d 579, 580-581 [2001], lv denied 96 NY2d 862 [2001]). Defendant,however, failed to preserve his challenge to the amount of the fine for our review (seeid. at 581), and we decline to exercise our power to address it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [3] [c]).Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.