Opinion
02-09-2017
The PEOPLE of the State of New York, Respondent, v. Donald FAIRWEATHER Jr., Appellant.
Neal D. Futerfas, White Plains, for appellant, and appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Neal D. Futerfas, White Plains, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: GARRY, J.P., ROSE, DEVINE, CLARK and MULVEY, JJ.
DEVINE, J.Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 18, 2014, convicting defendant upon his plea of guilty of the crime of vehicular manslaughter in the first degree.
On September 25, 2013, defendant was driving his vehicle at a high speed while intoxicated and struck an oncoming vehicle, causing the death of Vadim Mushtak and serious injuries to Mushtak's wife. Defendant was thereafter charged in a six-count indictment with various offenses stemming from the incident. In full satisfaction of the indictment, defendant pleaded guilty to vehicular manslaughter in the first degree and waived his right to appeal. County Court, which made no sentencing commitment as part of the plea agreement, sentenced defendant to 5 to 15 years in prison with a recommendation that defendant serve the full 15 years. Defendant now appeals.
Defendant argues that the sentence imposed by County Court is harsh and excessive, but that challenge is precluded by his unchallenged waiver of the right to appeal (see People v. Guzman–Moore, 144 A.D.3d 1267, 1268, 40 N.Y.S.3d 289 [2016] ; People v. Perkins, 140 A.D.3d 1401, 1403, 33 N.Y.S.3d 584 [2016], lv. denied 28 N.Y.3d 1126, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Defendant also alleges that he did not receive the effective assistance of counsel. His claim survives his appeal waiver to the extent that it impacts the voluntariness of his guilty plea, but is unpreserved given his apparent failure to make an appropriate postallocution motion (see People v. Macon, 142 A.D.3d 739, 740, 36 N.Y.S.3d 752 [2016], lvs. denied 28 N.Y.3d 1073, 1075, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Ramos, 135 A.D.3d 1234, 1235, 23 N.Y.S.3d 479 [2016], lv. denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ). In any event, the claim concerns matters outside of the record and it is more properly the subject of a CPL article 440 motion (see People v. Crespo, 143 A.D.3d 412, 413, 38 N.Y.S.3d 184 [2016] ; People v. Perkins, 140 A.D.3d at 1403, 33 N.Y.S.3d 584).
ORDERED that the judgment is affirmed.
GARRY, J.P., ROSE, CLARK and MULVEY, JJ., concur.