| People v Bethea |
| 2015 NY Slip Op 08461 [133 AD3d 1033] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Terell Bethea, Appellant. |
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered June 5, 2013, convicting defendant upon his plea of guilty of thecrime of murder in the second degree.
In full satisfaction of a six-count indictment, defendant pleaded guilty to murder inthe second degree and waived his right to appeal. In accordance with the plea agreement,County Court sentenced defendant to a prison term of 17 years to life and he was orderedto pay restitution. Defendant now appeals.
We affirm. County Court distinguished the right to appeal from the rightsautomatically forfeited by a guilty plea and defendant executed a counseled writtenwaiver in open court. Accordingly, defendant validly waived the right to appeal hisconviction and sentence (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Burritt, 127 AD3d 1433, 1434 [2015]). Therefore,his claim that his sentence is harsh and excessive is precluded as his "valid waiver of theright to appeal includes waiver of the right to invoke [this Court's] interest-of-justicejurisdiction to reduce the sentence" (People v Lopez, 6 NY3d at 255; accord People v Morrison, 106AD3d 1201, 1202 [2013], lv denied 23 NY3d 1065 [2014]). To the extentthat defendant's claims challenging the integrity of the grand jury proceedings survive hisguilty plea, such claims are not reviewable inasmuch as the minutes of the proceedingswere not included in the record (see People v Barill, 120 AD3d 951, 952 [2014], lvdenied 24 NY3d 1042 [2014]; see generally People v Hawkins, 113 AD3d 1123,1125[*2][2014], lv denied 22 NY3d 1156[2014]).
Although defendant's claim that his plea was induced by an unfulfilled promiseimplicates the voluntariness of his plea and survives his appeal waiver, it is unpreservedfor our review as there is no indication in the record that he made an appropriatepostallocution motion (seePeople v Benson, 100 AD3d 1108, 1108-1109 [2012]; People v Hall, 89 AD3d1323, 1323 [2011]), and he did not make any statements during the plea allocutionthat triggered the narrow exception to the preservation rule (see People v Merrill, 123AD3d 1339, 1340 [2014], lv denied 26 NY3d 970 [2015]; People vBenson, 100 AD3d at 1109). Similarly, defendant's claim of ineffective assistance ofcounsel—to the extent that it impacts upon the voluntariness of his plea—isunpreserved for our review in the absence of an appropriate postallocution motion (see People v Smith, 119 AD3d1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]; People v Watson, 110 AD3d1110, 1111 [2013], lv denied 22 NY3d 1160 [2014]). Finally, defendant'schallenge to the amount of restitution awarded is also unpreserved for our review as hedid not request a hearing or otherwise challenge the amount at sentencing (see People v Miller, 126 AD3d1233, 1234 [2015], lv denied 25 NY3d 1168 [2015]; People v Bressard, 112 AD3d988, 989 [2013], lv denied 22 NY3d 1137 [2014]).
Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.