| People v Gulbin |
| 2018 NY Slip Op 06654 [165 AD3d 1611] |
| October 5, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ian Gulbin, Appellant. |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedOctober 30, 2014. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of murder in the second degree (Penal Law § 125.25 [4]). The conviction arisesfrom defendant's brutal and unconscionable conduct in beating to death a 13-month-old infantentrusted to his care. We affirm.
We conclude that defendant validly waived his right to appeal (see People v Lopez, 6 NY3d 248,256-257 [2006]). Defendant's valid waiver of the right to appeal forecloses his statutory andconstitutional challenges to the severity of his sentence (see People v Marshall, 144 AD3d 1544, 1545 [4th Dept 2016]).Even assuming, arguendo, that defendant's waiver of his right to appeal does not foreclose hisfurther contention that County Court should have recused itself at sentencing (see People v Walker, 100 AD3d1522, 1523 [4th Dept 2012], lv denied 20 NY3d 1104 [2013]), that contention isnevertheless unpreserved for our review (see People v Sparks, 160 AD3d 1279, 1280 [3d Dept 2018]), andwe decline to address it as a matter of discretion in the interest of justice (see CPL 470.15[3] [c]). Defendant's further contention that the court impermissibly enhanced his sentence inretaliation for his motion to withdraw the plea survives his appeal waiver (see People v Weinstock, 129 AD3d1663, 1664 [4th Dept 2015], lv denied 26 NY3d 1012 [2015]), but that contention isalso unpreserved for our review (seePeople v Womack, 151 AD3d 1754, 1754 [4th Dept 2017], lv denied 29 NY3d1136 [2017]), and we likewise decline to address it as a matter of discretion in the interest ofjustice. Defendant's remaining contention, i.e., that his allocution failed to affirmatively establisheach element of the crime, is not a recognized ground for vacating a guilty plea (see People v Goldstein, 12 NY3d295, 300-301 [2009]; People vMadden, 148 AD3d 1576, 1578 [4th Dept 2017], lv denied 29 NY3d 1034[2017]).
Finally, we note that the certificate of conviction incorrectly states that defendant wassentenced on October 30, 2015, and it must therefore be amended to reflect the correctsentencing date of October 30, 2014 (seegenerally People v Young, 74 AD3d 1864, 1865 [4th Dept 2010], lv denied 15NY3d 811 [2010]). Present—Whalen, P.J., Centra, Lindley, NeMoyer and Troutman,JJ.