| People v Pandori |
| 2015 NY Slip Op 08470 [133 AD3d 1044] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vNicholas C. Pandori, Appellant. |
Linda A. Berkowitz, Saratoga Springs, for appellant.
M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs, for respondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered May 13, 2014, convicting defendant upon his plea of guilty of the crime ofgrand larceny in the third degree.
Defendant waived indictment, pleaded guilty to a superior court informationcharging him with grand larceny in the third degree and waived his right to appeal.County Court thereafter sentenced him to five years of probation. Defendant nowappeals.
We affirm. Initially, we reject defendant's contention that his waiver of the right toappeal was invalid. Both County Court and the written waiver informed him of theseparate and distinct nature of the right to appeal, and County Court confirmed thatdefendant had discussed the waiver with counsel and understood its ramifications.Therefore, we conclude that defendant knowingly, intelligently and voluntarily waivedthe right to appeal his conviction and sentence (see People v Fligger, 117 AD3d 1343, 1344 [2014], lvdenied 23 NY3d 1061 [2014]; People v Chavis, 117 AD3d 1193, 1193-1194 [2014]).Although defendant's remaining claim—that his plea was not voluntarily entereddue to the ineffective assistance of counsel—survives his appeal waiver, it isunpreserved for our review as the record does not reflect that he made an appropriatepostallocution motion (seePeople v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089[2014]; People v Livziey,117 AD3d 1341, 1342 [2014]). To the extent that his claim addresses mattersoutside the record, they are more properly the subject of a CPL article 440 motion (see People v Stroman, 107AD3d 1023, 1025 [2013], lv denied 21 NY3d 1046 [2013]; People v Planty, 85 AD3d1317, 1318 [2011], lv denied [*2]17 NY3d820 [2011]).
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.