| People v Shaw |
| 2015 NY Slip Op 08542 [133 AD3d 1312] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard J. Shaw, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered June 3, 2013. The judgment convicted defendant, upon his plea of guilty, ofrape in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of rape in the third degree (Penal Law § 130.25 [2]). Initially, weagree with defendant that his waiver of the right to appeal was invalid because" 'the minimal inquiry made by County Court was insufficient to establish thatthe court engage[d] defendant in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice' " (People v Carrasquillo, 130AD3d 1498, 1498 [2015]; see People v Harris, 121 AD3d 1423, 1424 [2014], lvdenied 25 NY3d 989 [2015]). Although defendant's challenge to the voluntariness ofhis plea would have survived even a valid waiver of the right to appeal (see People v Adams, 57 AD3d1385, 1385 [2008], lv denied 12 NY3d 780 [2009]), "defendant did notmove to withdraw the plea or to vacate the judgment of conviction and thus failed topreserve his [challenge] for our review" (People v Dozier, 59 AD3d 987, 987 [2009], lvdenied 12 NY3d 815 [2009]). Defendant also failed to preserve for our review hischallenge to the amount of restitution ordered by the court inasmuch as he did not objectto the amount of restitution (seePeople v Spossey, 107 AD3d 1420, 1420 [2013], lv denied 22 NY3d1159 [2014]), or to the fact that the court relied exclusively on the presentence report indetermining the amount of restitution (see People v Cooke, 21 AD3d 1339, 1339 [2005]).
We reject defendant's contention that he was deprived of effective assistance ofcounsel. Defendant received an advantageous plea, and "nothing in the record castsdoubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397,404 [1995]; see generallyPeople v Pitcher, 126 AD3d 1471, 1473 [2015], lv denied 25 NY3d1169 [2015]).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.Present—Scudder, P.J., Smith, Carni, Lindley and Valentino, JJ.