Opinion
2013-12-5
The PEOPLE of the State of New York, Respondent, v. Donna M. WILEY, Appellant.
Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: Rose, J.P., McCarthy, Spain and Egan Jr., JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered June 5, 2012, convicting defendant upon her plea of guilty of the crime of grand larceny in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to grand larceny in the third degree, waived the right to appeal her conviction and sentence and was subsequently sentenced to 2 to 6 years in prison. Defendant now appeals, contending that she was denied the effective assistance of counsel and the sentence imposed was harsh and excessive.
We affirm. While defendant's argument that she received the ineffective assistance of counsel survives her appeal waiver, we find it unpreserved for our review in light of the absence of proof on this record that she made a motion to withdraw her guilty plea or vacate her judgment of conviction ( see People v. Youngblood, 107 A.D.3d 1159, 1160, 967 N.Y.S.2d 215 [2013], lv. denied21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013]; People v. Lazore, 102 A.D.3d 1017, 1017–1018, 961 N.Y.S.2d 325 [2013]; People v. Walton, 101 A.D.3d 1489, 1490, 956 N.Y.S.2d 705 [2012], lv. denied20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ). Defendant is precluded from raising her claim of harsh and excessive sentence given her unchallenged waiver of the right to appeal ( see People v. Mattison, 94 A.D.3d 1157, 1158, 941 N.Y.S.2d 528 [2012]; People v. Shurock, 83 A.D.3d 1342, 1344, 920 N.Y.S.2d 862 [2011] ).
ORDERED that the judgment is affirmed.
ROSE, J.P., SPAIN and EGAN JR., JJ., concur.