Opinion
03-01-2017
The PEOPLE, etc., respondent, v. Cynthia THOMAS, appellant.
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered July 10, 2015, convicting her of grand larceny in the third degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.The defendant validly waived her right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 254, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant contends that her plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to advise her of all of her constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Although this contention survives her valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. May, 138 A.D.3d 1146, 1146, 30 N.Y.S.3d 327 ), it is unpreserved for appellate review, since the defendant failed to move to vacate her plea prior to the imposition of sentence or otherwise raise the issue before the County Court (see CPL 470.05[2] ; People v. May, 138 A.D.3d at 1146, 30 N.Y.S.3d 327 ; People v. Jackson, 114 A.D.3d 807, 807, 979 N.Y.S.2d 704 ; People v. Folger, 110 A.D.3d 736, 971 N.Y.S.2d 890 ). We decline to review this issue in the exercise of our interest of justice jurisdiction (see People v. Bernardini, 142 A.D.3d 671, 36 N.Y.S.3d 827 ).
The defendant's contention that she was improperly adjudicated a second felony offender is precluded by her valid appeal waiver, inasmuch as her challenge goes to the County Court's compliance with procedures to determine the defendant's predicate felony status, rather than the legality of the sentence itself (see People v. Hicks, 134 A.D.3d 854, 19 N.Y.S.3d 907 ).
LEVENTHAL, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.