Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Kenneth R. ORTIZ, Defendant–Appellant. (Appeal No. 1.)
Marcel J. Lajoy, Albany, for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Marcel J. Lajoy, Albany, for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[1] ), defendant contends that he was denied effective assistance of counsel based upon the failure of his original attorney to facilitate his testimony before the grand jury and by his new attorney's failure to move to dismiss the indictment pursuant to CPL 190.50(5)(c) based upon the alleged violation of his right to testify before the grand jury. Inasmuch as that contention does not impact the voluntariness of defendant's plea, it is foreclosed by his waiver of the right to appeal ( see People v. Bonner, 21 A.D.3d 1184, 1185–1186, 802 N.Y.S.2d 263,lv. denied6 N.Y.3d 773, 811 N.Y.S.2d 340, 844 N.E.2d 795;People v. Carroll, 21 A.D.3d 586, 586–587, 800 N.Y.S.2d 777) and the guilty plea ( see People v. Turner, 40 A.D.3d 1018, 1019, 834 N.Y.S.2d 666,lv. denied9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761;People v. Vincent, 305 A.D.2d 1108, 1109, 757 N.Y.S.2d 920,lv. denied100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491). In addition, because “defendant pleaded guilty with the assistance of new counsel, he forfeited the right to argue that he was denied the opportunity to testify before the grand jury as the result of the prior attorney's conduct” ( People v. Weems, 61 A.D.3d 472, 472, 879 N.Y.S.2d 68,lv. denied13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022;see People v. Moore, 61 A.D.3d 494, 495, 878 N.Y.S.2d 6,lv. denied12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080).
We reject defendant's contention that the fine imposed as part of his sentence is illegal in view of the People's concession that the stolen property was returned and he realized no financial gain from the crime ( see People v. McFarlane, 18 A.D.3d 577, 578, 794 N.Y.S.2d 660,lv. denied5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672). Defendant's further contention that the amount of the fine is unduly harsh and severe survives his waiver of the right to appeal because that amount was not included in the terms of the plea bargain ( see People v. Etkin, 284 A.D.2d 579, 580–581, 728 N.Y.S.2d 205,lv. denied96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119). Defendant, however, failed to preserve his challenge to the amount of the fine for our review ( see id. at 581, 728 N.Y.S.2d 205), and we decline to exercise our power to address it as a matter of discretion in the interest of justice ( seeCPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.