| People v Fairweather |
| 2017 NY Slip Op 01028 [147 AD3d 1153] |
| February 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v DonaldFairweather Jr., Appellant. |
Neal D. Futerfas, White Plains, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered July 18, 2014, convicting defendant upon his plea of guilty of the crime of vehicularmanslaughter in the first degree.
On September 25, 2013, defendant was driving his vehicle at a high speed while intoxicatedand struck an oncoming vehicle, causing the death of Vadim Mushtak and serious injuries toMushtak's wife. Defendant was thereafter charged in a six-count indictment with various offensesstemming from the incident. In full satisfaction of the indictment, defendant pleaded guilty tovehicular manslaughter in the first degree and waived his right to appeal. County Court, whichmade no sentencing commitment as part of the plea agreement, sentenced defendant to 5 to 15years in prison with a recommendation that defendant serve the full 15 years. Defendant nowappeals.
Defendant argues that the sentence imposed by County Court is harsh and excessive, but thatchallenge is precluded by his unchallenged waiver of the right to appeal (see People v Guzman-Moore, 144AD3d 1267, 1268 [2016]; People vPerkins, 140 AD3d 1401, 1403 [2016], lv denied 28 NY3d 1126 [2016]).Defendant also alleges that he did not receive the effective assistance of counsel. His claimsurvives his appeal waiver to the extent that it impacts the voluntariness of his guilty plea, but isunpreserved given his apparent failure to make an appropriate postallocution motion (see People v Macon, 142 AD3d739, 740 [2016], lv denied 28 NY3d 1073 [2016]; People v Ramos, 135 AD3d 1234,1235 [2016], lv denied 28 NY3d [*2]935 [2016]). In anyevent, the claim concerns matters outside of the record and it is more properly the subject of aCPL article 440 motion (see People vCrespo, 143 AD3d 412, 413 [2016]; People v Perkins, 140 AD3d at 1403).
Garry, J.P., Rose, Clark and Mulvey, JJ., concur. Ordered that the judgment is affirmed.