Opinion
2012-05-17
The PEOPLE of the State of New York, Respondent, v. Daryl W. GIBBS, Appellant.
John D. Wright, Glens Falls, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Brian W. Felton of counsel), for respondent.
John D. Wright, Glens Falls, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Brian W. Felton of counsel), for respondent.
Before: ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered March 31, 2011, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty in 2010 to criminal contempt in the first degree stemming from his alleged violation of a November 2007 temporary order of protection. As part of the negotiated plea agreement, defendant also waived his right to appeal. County Court then sentenced defendant to a prison term of 1 1/3 to 4 years and this appeal ensued.
Defendant does not challenge the validity of such waiver.
On appeal, defendant asserts that his conviction should be reversed inasmuch as the temporary order of protection upon which the conviction is based was void because it automatically expired upon the resolution of the 2007 criminal proceeding. Based on the record before us, defendant did not preserve this claim by moving to withdraw his plea ( see People v. Charlotten, 44 A.D.3d 1097, 1098, 843 N.Y.S.2d 697 [2007] ). For the same reason, defendant's claim of ineffective assistance of counsel is unpreserved for our review ( see People v. Clark, 52 A.D.3d 951, 952, 860 N.Y.S.2d 659 [2008], lv. denied 11 N.Y.3d 831, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008] ).
Defendant's challenge to the severity of his sentence is precluded by his valid waiver of the right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Sherman, 91 A.D.3d 982, 983, 936 N.Y.S.2d 358 [2012] ). Finally, defendant's remaining contentions have been considered and found to be unavailing.
*917 ORDERED that the judgment is affirmed.