| People v Carpio |
| 2019 NY Slip Op 03068 [171 AD3d 1206] |
| April 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sergio Carpio, Appellant. |
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M.Forman, J.), rendered October 8, 2015, convicting him of criminal sale of a controlled substancein the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant correctly contends that the purported waiver of his right to appeal was invalid.The County Court failed to advise the defendant of the nature of the right to appeal and to ensurethat the defendant grasped the concept of the appeal waiver and the nature of the right he wasforegoing (see People v Fernandez,168 AD3d 973 [2019]; People vBrown, 122 AD3d 133, 140-141 [2014]).
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review (see CPL 470.05 [2]; Peoplev Toxey, 86 NY2d 725, 726 [1995]; People v McClenic, 155 AD3d 1064 [2017]). In any event, contraryto the defendant's contention, the fact that the purported waiver of his right to appeal was invaliddid not render his plea of guilty invalid. Indeed, "[t]he right to appeal need not be waived in orderfor a plea of guilty to be valid" (People v Brown, 122 AD3d at 137). Also, contrary to thedefendant's contention, he was never asked to waive a claim of ineffective assistance of counselduring the plea negotiation process. In any event, a claim of ineffective assistance of counsel isprecluded, except to the extent that the alleged ineffective assistance may have affected thevoluntariness of the plea (see e.g. Peoplev West, 123 AD3d 850, 851 [2014]).
The defendant's argument that the postrelease supervision component of his sentence shouldbe reduced because he was never credited with 11 months of time served is based on mattersdehor the record. "Defendant's proper remedy is by way of a CPLR article 78 proceeding toreview the prison authorities' calculation of his jail-time credit" (People v Vivenzio, 103AD2d 1044, 1045 [1984]). Contrary to the defendant's contention, the fact that he is no longer inprison does not prevent him from commencing a CPLR article 78 proceeding to challenge thepostrelease supervision component of his sentence (see e.g. Matter of Dreher v Goord, 46 AD3d 1261, 1261-1262[2007]). Rivera, J.P., Chambers, Cohen and Iannacci, JJ., concur.