Opinion
2011-04-5
The PEOPLE, etc., respondent, v. Robert KULMATYCSKI, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant, and appellant pro se.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), for respondent.
The defendant's remaining contentions in his pro se supplemental brief were forfeited by his plea of guilty.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered May, 27, 2008, convicting him of driving while intoxicated as a felony, aggravated unlicensed operation of a motor vehicle in the first degree, unlawful fleeing of a police officer in a motor vehicle in the third degree, resisting arrest, reckless driving in violation of Vehicle and Traffic Law § 1212, and speeding, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not voluntary is unpreserved for appellate review, since he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court ( see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668;People v. Bell, 47 N.Y.2d 839, 840, 418 N.Y.S.2d 584, 392 N.E.2d 570; People v. Mullen, 77 A.D.3d 686, 686, 908 N.Y.S.2d 350;People v. Bolton, 63 A.D.3d 1087, 1087, 880 N.Y.S.2d 558;People v. Perez, 51 A.D.3d 1043, 1043, 861 N.Y.S.2d 63;People v. Scoca, 38 A.D.3d 801, 801, 832 N.Y.S.2d 604). In any event, nothing that occurred during his allocution called into question the voluntariness of his plea ( see People v. Seeber, 4 N.Y.3d 780, 781–782, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Martinez, 78 A.D.3d 966, 967, 910 N.Y.S.2d 684), and the record reflects that it was knowing, voluntary, and intelligent ( see People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311;People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Perry, 60 A.D.3d 974, 974, 874 N.Y.S.2d 916).
To the extent that the defendant's contentions regarding the effectiveness of his counsel involve matter dehors the record, they may not be reviewed on direct appeal ( see People v. Moss, 74 A.D.3d 1360, 1360–1361, 903 N.Y.S.2d 265;People v. Bravo, 72 A.D.3d 697, 698, 899 N.Y.S.2d 280). Insofar as we are able to review the defendant's claim of ineffective assistance of counsel, he received an advantageous plea and nothing in the record casts doubt on the effectiveness of counsel ( see People v. Moss, 74 A.D.3d at 1360–1361, 903 N.Y.S.2d 265;People v. Rossetti, 55 A.D.3d 637, 638, 865 N.Y.S.2d 318;People v. Hughes, 62 A.D.3d 1026, 1026–1027, 878 N.Y.S.2d 911;People v. Boodhoo, 191 A.D.2d 448, 448, 593 N.Y.S.2d 882).
Furthermore, “[s]ince the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis to now complain that his sentence was excessive” ( People v. Mejia, 6 A.D.3d 630, 630, 774 N.Y.S.2d 801;see People v. Nimerofsky, 78 A.D.3d 735, 736, 909 N.Y.S.2d 656;People v. De Alvarez, 59 A.D.3d 732, 733, 873 N.Y.S.2d 724;People v. Fanelli, 8 A.D.3d 296, 296, 777 N.Y.S.2d 320;People v. Kazepis, 101 A.D.2d 816, 817, 475 N.Y.S.2d 351).