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People v. Rivers

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
BRUCE RIVERS, DEFENDANT-APPELLANT.

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered May 14, 2008, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

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.

Tom, J.P., Saxe, Sweeny, Acosta, Abdus-Salaam, JJ.

3916/01

Since the final plea proceeding expressly incorporated by reference the allocution conducted at a prior plea proceeding, defendant's prior waiver of his right to appeal is enforceable (see People v Hickman, 57 AD3d 370 [2008]; People v Morrison, 48 AD3d 2008 [2008], lv denied 10 NY3d 867 [2008]), and it forecloses defendant's present procedural claim relating to his sentencing. Furthermore, aside from the waiver, defendant did not preserve his claim that when the court ordered his sentence to be served consecutively to another sentence it misapprehended its discretion under Penal Law § 70.25(2-b) to impose a concurrent sentence upon a finding of mitigating circumstances (see People v Hamlet, 227 AD2d 203, 204 [1996], lv denied 88 NY2d 1021 [1996], and we decline to review it in the interest of justice. Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters outside the record (see People v Love, 57 NY2d 998 [1982]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090602

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