People v Koch

2019 NY Slip Op 00463 [168 AD3d 977]

January 23, 2019

Appellate Division, Second Department

As corrected through Wednesday, March 6, 2019

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The People of the State of New York,Respondent, v Joseph Koch, Appellant.

Marianne Karas, Thornwood, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Mary Faldich ofcounsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F.Gugerty, J.), rendered November 10, 2016, convicting him of grand larceny in the second degreeand scheme to defraud in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

On October 5, 2015, the defendant entered a plea of guilty to grand larceny in the seconddegree and scheme to defraud in the first degree. As part of the plea agreement, the SupremeCourt advised the defendant that he would receive an aggregate indeterminate term ofimprisonment of 11/3 to 4 years, conditioned on his payment of restitution in theamount of $513,799.51 on or before a sentencing date of June 30, 2016. However, the defendantalso was advised that if he failed to make full restitution, then he would receive, inter alia, a termof imprisonment of 3 to 9 years. After obtaining several adjournments of the sentencing date, andfailing to make full restitution, the defendant was sentenced on November 10, 2016, among otherthings, to an aggregate indeterminate term of imprisonment of 3 to 9 years.

Contrary to the defendant's contention, the record of the plea proceeding establishes that hevalidly waived his right to appeal. The Supreme Court adequately advised the defendant of thenature of the right to appeal and distinguished it from other rights automatically forfeited as aconsequence of pleading guilty, and the defendant knowingly, voluntarily, and intelligentlywaived that right (see People vSanders, 25 NY3d 337, 339-342 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]). The defendant's validwaiver of the right to appeal forecloses appellate review of his current contention that thesentence imposed was excessive (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Deprosperis, 132 AD3d692, 693 [2015]; People vFrazier, 127 AD3d 1229, 1230 [2015]).

The defendant's valid waiver of his right to appeal also precludes review of his claim that hewas deprived of the effective assistance of counsel except to the extent that the allegedineffective assistance may have affected the voluntariness of his plea (see People v Dancy, 156 AD3d717, 717-718 [2017]; People vUpson, 134 AD3d 1058 [2015]; People v Haywood, 122 AD3d 769, 769-770 [2014]). Moreover, tothat extent, the defendant's claim is without merit since the record demonstrates that trial counselprovided him with meaningful representation (see People v Caban, 5 NY3d 143, 152 [2005]; People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]).

The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit (see People vPosner, 100 AD3d 805, 807 [2012]; People v Hassman, 70 AD3d 716, 717-718 [2010]; People v Bassoff, 51 AD3d 682,683 [2008]). Scheinkman, P.J., Mastro, Maltese and Barros, JJ., concur.