Opinion
2013-07-17
The PEOPLE, etc., respondent, v. Phillip BLACKWOOD, appellant.
Del Atwell, Albany, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender of counsel), for respondent.
Del Atwell, Albany, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
Appeal by the defendant from an amended judgment of the County Court, Westchester County (Warhit, J.), rendered September 13, 2011, revoking a sentence of probation previously imposed by the same court (Colangelo, J.), upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of driving while ability impaired in violation of Vehicle and Traffic Law § 1192(1).
ORDERED that the amended judgment is affirmed.
The defendant's claim that he was deprived of the constitutional right to the effective assistance of counsel is based on matter dehors the record, and thus it cannot be reviewed on direct appeal ( see People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919;People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152). “ ‘The appropriate vehicle ... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the ... record is pursuant to CPL 440.10, where matters dehors the record may be considered’ ” ( People v. Rohlehr, 87 A.D.3d at 604, 927 N.Y.S.2d 919, quoting People v. Miller, 68 A.D.3d at 1135, 892 N.Y.S.2d 152).
The defendant's valid waiver of his right to appeal from the amended judgment precludes review of his claim that the sentence imposed was excessive ( see People v. Ducheneaux, 97 A.D.3d 852, 853, 947 N.Y.S.2d 681;People v. Walker, 23 A.D.3d 588, 589, 805 N.Y.S.2d 398;People v. Gorovoy, 309 A.D.2d 764, 764, 765 N.Y.S.2d 275;see also People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222;People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).