Opinion
2012-12-20
The PEOPLE of the State of New York, Respondent, v. Donald J. AITKEN, Appellant.
Del Atwell, Albany, for appellant. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
Del Atwell, Albany, for appellant. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
Before: MERCURE, J.P., ROSE, KAVANAGH, STEIN and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered April 14, 2011 in Delaware County, convicting defendant upon his plea of guilty of the crime of arson in the third degree (seven counts).
Defendant was charged in a 21–count indictment with various crimes stemming from his involvement in a series of burglaries and arsons, which included breaking into and setting fire to a local church. In full satisfaction thereof, defendant subsequently pleaded guilty to seven counts of arson in the third degree and waived his right to appeal. Although the People recommended consecutive prison terms of 1 to 3 years on each count, Supreme Court made no commitment as to sentencing. Upon reviewing the presentence investigation report and accompanying victim impact statements, Supreme Court imposed an aggregate prison term of 19 to 57 years. This appeal by defendant ensued.
We affirm. Defendant does not dispute that he validly waived his right to appeal, and our review of the record reveals that the underlying waiver encompassed both defendant's conviction and sentence. The record further reflects that “defendant was aware of his sentencing exposure and that no specific sentencing commitment had been made” ( People v. Budwick, 82 A.D.3d 1447, 1448, 918 N.Y.S.2d 750 [2011],lv. denied17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [2011] ). Accordingly, defendant's present challenge to the severity of his sentence is precluded by his valid appeal waiver ( see id. at 1448, 918 N.Y.S.2d 750;People v. Sofia, 62 A.D.3d 1159, 1160, 881 N.Y.S.2d 185 [2009];compare People v. Tesar, 65 A.D.3d 716, 717, 883 N.Y.S.2d 803 [2009] ), and we decline defendant's invitation to modify the sentence imposed as a matter of discretion in the interest of justice.
As for defendant's ineffective assistance of counsel claim, even assuming such claim impacts upon the voluntariness of his plea and, hence, survives his waiver of appeal, there is no indication on this record that defendant moved to withdraw his plea or vacate the judgment of conviction. Accordingly, this issue is unpreserved for our review ( see People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lvs. denied19 N.Y.3d 973, 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];People v. Ildefonso, 89 A.D.3d 1327, 1327, 932 N.Y.S.2d 921 [2011] ). In any event, the record reflects that counsel obtained a favorable plea agreement for defendant and that defendant, in turn, indicated that he had been afforded sufficient time to confer with counsel and was satisfied with his services ( see People v. Flake, 95 A.D.3d at 1372, 943 N.Y.S.2d 307;People v. Shurock, 83 A.D.3d 1342, 1344, 920 N.Y.S.2d 862 [2011] ). Thus, were we to reach this issue, we would conclude that defendant received meaningful representation.
ORDERED that the judgment is affirmed.