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People v. Peterkin

State of New York Supreme Court, Appellate Division Third Judicial Department


October 14, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KAHENE PETERKIN, ALSO KNOWN AS KASHEEM MCFADDEN, APPELLANT.

The opinion of the court was delivered by: Kavanagh, J.

MEMORANDUM AND ORDER

Calendar Date: September 14, 2010

Before: Spain, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered June 9, 2008, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

In satisfaction of an 11-count indictment, defendant pleaded guilty to robbery in the first degree, waived his right to appeal and was sentenced as a second felony offender to the agreed-upon term of 13 years in prison followed by five years of postrelease supervision. Defendant now appeals, arguing that he received ineffective assistance of counsel and that his sentence was harsh and excessive.

To the extent that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea, it survives the waiver of his right to appeal (see People v Walley, 63 AD3d 1284, 1285 [2009]; People v Gilmour, 61 AD3d 1122, 1124 [2009], lv denied 12 NY3d 925 [2009]). Nevertheless, defendant's failure to move to withdraw the plea or vacate the judgment of conviction renders the matter unpreserved for our review (see People v Scitz, 67 AD3d 1251, 1251-1252 [2009]). In any event, defendant's contention that he was pressured into entering the plea is belied by the record. Defendant's remaining assertion that the bargained for sentence is harsh and excessive is foreclosed by his valid appeal waiver (see People v Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]).

Spain, J.P., Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20101014

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