| People v Garry |
| 2015 NY Slip Op 08466 [133 AD3d 1039] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Garry, Appellant. |
Grasso, Rodriguez & Grasso, Schenectady (Nicholas J. Grasso of counsel), forappellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered October 22, 2013, convicting defendant upon his plea of guilty ofthe crimes of arson in the third degree and criminal sale of a controlled substance in thefifth degree.
In May 2012, defendant was indicted for three counts of criminal sale of a controlledsubstance in the third degree and three counts of criminal possession of a controlledsubstance in the third degree. Defendant later waived indictment and was charged bysuperior court information with an additional charge of arson in the third degree.Defendant thereafter pleaded guilty to one count of arson in the third degree and onecount of criminal possession of a controlled substance in the fifth degree in satisfactionof all outstanding charges and waived his right to appeal with regard thereto. CountyCourt thereafter sentenced him in accordance with the revised plea agreement toconcurrent terms of imprisonment, the maximum being a term of 4 to 12 years, andordered him to pay restitution.[FN*] Defendant appeals.
[*2] We affirm. With regard to defendant's claim that hewas denied the effective assistance of counsel, to the extent that such claim is alleged tohave impacted the voluntariness of his plea, it survives his appeal waiver; however, it isnot preserved for our review as the record does not reflect that he moved to withdraw hisplea (see People v Ortiz,127 AD3d 1416, 1417 [2015], lv denied 26 NY3d 1010 [2015]) and the narrow exception to the preservation requirement isinapplicable inasmuch as defendant made no statements during his plea colloquy thatwould cast doubt on the voluntariness of his plea (see People v Van Clief, 122 AD3d 1062, 1063 [2014],lv denied 24 NY3d 1221 [2015]). Further, to the extent that defendant contendsthat counsel made certain misrepresentations regarding the terms of the plea agreement,such claims involve matters outside the record and, therefore, are more properly thesubject of a CPL article 440 motion (see People v Toback, 125 AD3d 1060, 1061-1062 [2015],lv denied 25 NY3d 993 [2015]; People v Stroman, 106 AD3d 1268, 1271 [2013], lvdenied 21 NY3d 1046 [2013]).
Additionally, upon review of the plea colloquy and defendant's written waiver, wefind that defendant knowingly, intelligently and voluntarily waived his right to appeal(see People v Lopez, 6NY3d 248, 256 [2006]; People v Viele, 130 AD3d 1097, 1097 [2015]). In light ofdefendant's valid appeal waiver, defendant is precluded from challenging theagreed-upon sentence as harsh and excessive (see People v Tyler, 130 AD3d 1383, 1385 [2015]).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The plea agreementoriginally called for a prison sentence of 5 to 15 years; however, upon review of thepresentence investigation report and with defendant's consent, County Court ultimatelyreduced defendant's maximum sentence to 4 to 12 years.