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People v. Pettigrew

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID C. PETTIGREW, SR., DEFENDANT-APPELLANT.

Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), rendered December 19, 2007. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the first degree and criminal contempt in the first degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., HURLBUTT, MARTOCHE, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [2]) and criminal contempt in the first degree (§ 215.51 [b] [vi]). Contrary to the contention of defendant, his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v Lopez, 6 NY3d 248, 256; People v Lococo, 92 NY2d 825, 827). The challenge by defendant to the severity of the sentence is encompassed by his valid waiver of the right to appeal (see Lopez, 6 NY3d at 256; People v Hidalgo, 91 NY2d 733, 737). The contention of defendant in his pro se supplemental brief concerning alleged prosecutorial vindictiveness is based upon matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Hoeft, 42 AD3d 968, 969-970, lv denied 9 NY3d 962). The further contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel "does not survive his guilty plea or his waiver of the right to appeal because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance" (People v Dean, 48 AD3d 1244, 1245, lv denied 10 NY3d 839 [internal quotation marks omitted]). We have reviewed the remaining contentions of defendant in his pro se supplemental brief and conclude that none requires reversal or modification of the judgment.

20090206

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