Opinion
2016–07859 Ind. No. 27/15
04-24-2019
The PEOPLE, etc., Respondent, v. Sergio CARPIO, Appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant correctly contends that the purported waiver of his right to appeal was invalid. The County Court failed to advise the defendant of the nature of the right to appeal and to ensure that the defendant grasped the concept of the appeal waiver and the nature of the right he was foregoing (see People v. Fernandez, 168 A.D.3d 973, 90 N.Y.S.3d 548 ; People v. Brown, 122 A.D.3d 133, 140–141, 992 N.Y.S.2d 297 ).
The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review (see CPL 470.05[2] ; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 ; People v. McClenic, 155 A.D.3d 1064, 64 N.Y.S.3d 554 ). In any event, contrary to the defendant's contention, the fact that the purported waiver of his right to appeal was invalid did not render his plea of guilty invalid. Indeed, "[t]he right to appeal need not be waived in order for a plea of guilty to be valid" ( People v. Brown, 122 A.D.3d at 137, 992 N.Y.S.2d 297 ). Also, contrary to the defendant's contention, he was never asked to waive a claim of ineffective assistance of counsel during the plea negotiation process. In any event, a claim of ineffective assistance of counsel is precluded, except to the extent that the alleged ineffective assistance may have affected the voluntariness of the plea (see e.g. People v. West, 123 A.D.3d 850, 851, 996 N.Y.S.2d 534 ).
The defendant's argument that the postrelease supervision component of his sentence should be reduced because he was never credited with 11 months of time served is based on matters dehor the record. "Defendant's proper remedy is by way of a CPLR article 78 proceeding to review the prison authorities' calculation of his jail-time credit" ( People v. Vivenzio, 103 A.D.2d 1044, 1045, 478 N.Y.S.2d 438 ). Contrary to the defendant's contention, the fact that he is no longer in prison does not prevent him from commencing a CPLR article 78 proceeding to challenge the postrelease supervision component of his sentence (see e.g. Matter of Dreher v. Goord, 46 A.D.3d 1261, 1261–1262, 848 N.Y.S.2d 758 ).
RIVERA, J.P., CHAMBERS, COHEN and IANNACCI, JJ., concur.