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People v. Shand

Supreme Court of New York, Second Department

October 2, 2013

The People of the State of New York, respondent,
v.
Stephen Shand, appellant. (Ind. No. 82/11)

Michael G. Paul, New City, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered June 21, 2012, convicting him of murder in the first degree and predatory sexual assault, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review, since he did not move to withdraw his plea of guilty prior to the imposition of sentence (see CPL 220.60[3], 470.05[2]; People v Murray, 15 N.Y.3d 725, 726; People v Clarke, 93 N.Y.2d 904, 906; People v Lopez, 71 N.Y.2d 662, 665; People v Oseni, 107 A.D.3d 829; People v Newson, 106 A.D.3d 839, 840; People v Cohen, 100 A.D.3d 919). Moreover, the rare exception to the preservation requirement is inapplicable here (see People v Lopez, 71 N.Y.2d at 665). In any event, the record reveals that the defendant was properly advised of the direct consequences of the plea, and that he understood its consequences (see People v Catu, 4 N.Y.3d 242, 244-245; People v Ford, 86 N.Y.2d 397, 402-403).

The defendant's valid waiver of his right to appeal precludes review of his contention that he was denied the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v Bradshaw, 18 N.Y.3d 257, 264-267; People v Lopez, 6 N.Y.3d 248, 256-257; People v Yarborough, 83 A.D.3d 875; People v Cardona, 51 A.D.3d 941; People v Gedin, 46 A.D.3d 701). To the extent the defendant contends that the voluntariness of his plea was affected by ineffective assistance of counsel, the record reveals that the defendant received the effective assistance of counsel (see Hill v Lockhart, 474 U.S. 52; Strickland v Washington, 466 U.S. 668, 694; People v Ford, 86 N.Y.2d at 404).

The defendant's valid waiver of his right to appeal also precludes appellate review of his claim that the sentence imposed was excessive (see People v Lopez, 6 N.Y.3d at 256; People v Seaberg, 74 N.Y.2d 1, 9).

DILLON, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.


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