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The People of the State of v. Donald J. Aitken

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


December 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DONALD J. AITKEN, APPELLANT.

Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered April 14, 2011 in Delaware County, convicting defendant upon his plea of guilty of the crime of arson in the third degree (seven counts).

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

MEMORANDUM AND ORDER

Calendar Date: November 15, 2012

Before: Mercure, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ.

Defendant was charged in a 21-count indictment with various crimes stemming from his involvement in a series of burglaries and arsons, which included breaking into and setting fire to a local church. In full satisfaction thereof, defendant subsequently pleaded guilty to seven counts of arson in the third degree and waived his right to appeal. Although the People recommended consecutive prison terms of 1 to 3 years on each count, Supreme Court made no commitment as to sentencing. Upon reviewing the presentence investigation report and accompanying victim impact statements, Supreme Court imposed an aggregate prison term of 19 to 57 years. This appeal by defendant ensued.

We affirm. Defendant does not dispute that he validly waived his right to appeal, and our review of the record reveals that the underlying waiver encompassed both defendant's conviction and sentence. The record further reflects that "defendant was aware of his sentencing exposure and that no specific sentencing commitment had been made" (People v Budwick, 82 AD3d 1447, 1448 [2011], lv denied 17 NY3d 857 [2011]). Accordingly, defendant's present challenge to the severity of his sentence is precluded by his valid appeal waiver (see id. at 1448; People v Sofia, 62 AD3d 1159, 1160 [2009]; compare People v Tesar, 65 AD3d 716, 717 [2009]), and we decline defendant's invitation to modify the sentence imposed as a matter of discretion in the interest of justice.

As for defendant's ineffective assistance of counsel claim, even assuming such claim impacts upon the voluntariness of his plea and, hence, survives his waiver of appeal, there is no indication on this record that defendant moved to withdraw his plea or vacate the judgment of conviction. Accordingly, this issue is unpreserved for our review (see People v Flake, 95 AD3d 1371, 1372 [2012], lvs denied 19 NY3d 973, 974 [2012]; People v Ildefonso, 89 AD3d 1327, 1327 [2011]). In any event, the record reflects that counsel obtained a favorable plea agreement for defendant and that defendant, in turn, indicated that he had been afforded sufficient time to confer with counsel and was satisfied with his services (see People v Flake, 95 AD3d at 1372; People v Shurock, 83 AD3d 1342, 1344 [2011]). Thus, were we to reach this issue, we would conclude that defendant received meaningful representation.

Mercure, J.P., Rose, Kavanagh and Stein, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121220

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