Opinion
2017–02816 Ind.No. 1450/14
01-23-2019
The PEOPLE, etc., Respondent, v. Joseph KOCH, Appellant.
Marianne Karas, Thornwood, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Mary Faldich of counsel), for respondent.
Marianne Karas, Thornwood, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Mary Faldich of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
On October 5, 2015, the defendant entered a plea of guilty to grand larceny in the second degree and scheme to defraud in the first degree. As part of the plea agreement, the Supreme Court advised the defendant that he would receive an aggregate indeterminate term of imprisonment of 1 ? to 4 years, conditioned on his payment of restitution in the amount of $513,799.51 on or before a sentencing date of June 30, 2016. However, the defendant also was advised that if he failed to make full restitution, then he would receive, inter alia, a term of imprisonment of 3 to 9 years. After obtaining several adjournments of the sentencing date, and failing to make full restitution, the defendant was sentenced on November 10, 2016, among other things, to an aggregate indeterminate term of imprisonment of 3 to 9 years.
Contrary to the defendant's contention, the record of the plea proceeding establishes that he validly waived his right to appeal. The Supreme Court adequately advised the defendant of the nature of the right to appeal and distinguished it from other rights automatically forfeited as a consequence of pleading guilty, and the defendant knowingly, voluntarily, and intelligently waived that right (see People v. Sanders , 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of the right to appeal forecloses appellate review of his current contention that the sentence imposed was excessive (see People v. Lococo , 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 ; People v. Deprosperis , 132 A.D.3d 692, 693, 17 N.Y.S.3d 315 ; People v. Frazier , 127 A.D.3d 1229, 1230, 7 N.Y.S.3d 523 ).
The defendant's valid waiver of his right to appeal also precludes review of his claim that he was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance may have affected the voluntariness of his plea (see People v. Dancy , 156 A.D.3d 717, 717–718, 66 N.Y.S.3d 530 ; People v. Upson , 134 A.D.3d 1058, 21 N.Y.S.3d 688 ; People v. Haywood , 122 A.D.3d 769, 769–770, 996 N.Y.S.2d 137 ). Moreover, to that extent, the defendant's claim is without merit since the record demonstrates that trial counsel provided him with meaningful representation (see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit (see People v. Posner , 100 A.D.3d 805, 807, 954 N.Y.S.2d 118 ; People v. Hassman , 70 A.D.3d 716, 717–718, 893 N.Y.S.2d 618 ; People v. Bassoff , 51 A.D.3d 682, 683, 857 N.Y.S.2d 664 ).
SCHEINKMAN, P.J., MASTRO, MALTESE and BARROS, JJ., concur.