Opinion
2014-05-29
The PEOPLE of the State of New York, Respondent, v. Dana R. LIVZIEY, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Theresa M. Suozzi, Saratoga Springs, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, McCARTHY, GARRY and DEVINE, JJ.
GARRY, J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered November 19, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with criminal possession of stolen property in the fourth degree. He thereafter pleaded guilty to that crime in full satisfaction of this charge and certain uncharged crimes and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony offender, to a prison term of 2 to 4 years, with the sentence to run concurrently with a sentence he was already serving. Defendant appeals.
We affirm. Defendant's valid waiver of the right to appeal his conviction and sentence, which he does not challenge, forecloses his claims of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance directly affected the voluntariness of his plea ( see People v. Ildefonso, 89 A.D.3d 1327, 1327, 932 N.Y.S.2d 921 [2011];People v. Santos–Rivera, 86 A.D.3d 790, 790, 927 N.Y.S.2d 236 [2011],lv. denied17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ). Such claims regarding the voluntariness of his plea are unpreserved for review, however, as the record does not reflect that defendant made an appropriate postallocution motion ( see People v. Aitken, 101 A.D.3d 1383, 1384, 955 N.Y.S.2d 534 [2012],lv. denied21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013];People v. DeJesus, 96 A.D.3d 1295, 1295, 947 N.Y.S.2d 216 [2012] ). Defendant's remaining claim, that his sentence is harsh and excessive, is foreclosed by his valid waiver of the right to appeal ( see People v. Marshall, 108 A.D.3d 884, 884, 968 N.Y.S.2d 409 [2013],lv. denied22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013];People v. Passino, 104 A.D.3d 1060, 1061, 962 N.Y.S.2d 461[2013],lv. denied22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ).
ORDERED that the judgment is affirmed. PETERS, P.J., LAHTINEN, McCARTHY and DEVINE, JJ., concur.