People v Viele

2015 NY Slip Op 05717 [130 AD3d 1097]

July 2, 2015

Appellate Division, Third Department

As corrected through Wednesday, September 2, 2015

[*1]

The People of the State of New York, Respondent, vPatrick R. Viele, Appellant.

Linda A. Berkowitz, Saratoga Springs, for appellant.

G. Scott Walling, Special Prosecutor, Schenectady, for respondent.

Lahtinen, J.P. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered January 10, 2014, convicting defendant upon his plea of guilty ofthe crime of attempted criminal sale of a controlled substance in the fifth degree.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in thefifth degree and waived his right to appeal. County Court thereafter sentenced him totime served and five years of probation. Defendant now appeals.

We affirm. To the extent that defendant challenges the validity of his appeal waiver,the plea colloquy and the counseled written waiver demonstrate that he knowingly,intelligently and voluntarily waived his right to appeal (see People v Long, 117 AD3d1326, 1326 [2014], lv denied 24 NY3d 1003 [2014]; People v Frasier, 105 AD3d1079, 1080 [2013], lv denied 22 NY3d 1088 [2014]). Defendant's validappeal waiver forecloses his claim of ineffective assistance of counsel, except insofar asthe alleged ineffective assistance impacted upon the voluntariness of his plea (see People v Brooks, 118AD3d 1123, 1124 [2014], lv denied 24 NY3d 959 [2014]; People v Livziey, 117 AD3d1341, 1342 [2014]). Such claims regarding the voluntariness of his plea areunpreserved for our review, however, as the record does not reflect that he made anappropriate postallocution motion (see People v Terry, 122 AD3d 955, 956 [2014]; People v Osgood, 111 AD3d1029, 1030 [2013], lv denied 22 NY3d 1089 [2014]). Further, to the extentthat defendant alleges that his plea was not voluntary due to counsel's failure to move todismiss the indictment on statutory speedy trial grounds, the record on appeal isinadequate to assess the merits of the claim, given [*2]thelack of any motion before County Court on the issue, and, therefore, it could only beraised in a CPL article 440 motion (see People v Slingerland, 101 AD3d 1265, 1267 [2012],lv denied 20 NY3d 1104 [2013]; People v Obert, 1 AD3d 631, 632 [2003], lv denied2 NY3d 764 [2004]).

Lynch, Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.