Opinion
1 KA 16–00486
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Michael A. IRBY, Defendant–Appellant. (Appeal No. 1.)
RAYMOND P. KOT, II, WILLIAMSVILLE, FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
RAYMOND P. KOT, II, WILLIAMSVILLE, FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:In each of these appeals, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ). As a preliminary matter, we note that it is unnecessary to review defendant's challenge in each appeal to his waiver of the right to appeal inasmuch as none of the issues he raises would be foreclosed from review by a valid waiver of the right to appeal (see People v. Cooper, 34 A.D.3d 827, 827, 823 N.Y.S.2d 917 [2d Dept. 2006] ).
Defendant contends in each appeal that his guilty plea was not knowingly, voluntarily, and intelligently entered because, at the time of each plea, County Court did not advise him that he would be sentenced as a second felony offender and did not advise him of his Boykin rights. Defendant failed to preserve for our review his contention in either appeal inasmuch as he did not move to withdraw either plea or to vacate either judgment of conviction (see People v. Metayeo, 155 A.D.3d 1239, 1241, 64 N.Y.S.3d 400 [3d Dept. 2017] ; People v. Kopy, 54 A.D.3d 441, 441, 862 N.Y.S.2d 651 [3d Dept. 2008] ; see also People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Hampton, 142 A.D.3d 1305, 1306, 38 N.Y.S.3d 319 [4th Dept. 2016],lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ).
In addition, to the extent that defendant contends in each appeal that "certain conversations and interactions with defense counsel gave rise to ineffective assistance of counsel and also established that [each] plea was involuntary, such contentions are ‘based on matters outside the record and must therefore be raised by way of a motion pursuant to CPL article 440’ " ( People v. Dale, 142 A.D.3d 1287, 1290, 38 N.Y.S.3d 333 [4th Dept. 2016],lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; see People v. Cook, 46 A.D.3d 1427, 1428, 847 N.Y.S.2d 496 [4th Dept. 2007], lv. denied 10 N.Y.3d 809, 857 N.Y.S.2d 42, 886 N.E.2d 807 [2008] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.