People v. Alvarado

82 A.D.3d 458, 918 N.Y.2d 99

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2011
• Status: Published

Opinions

Since defendant’s plea withdrawal application was made on different grounds from those asserted on appeal, his claim that the plea was rendered involuntary by the court’s allegedly inaccurate description of defendant’s sentencing exposure is unpreserved (see People v Cerveira, 6 AD3d 294 [2004], lv denied 3 NY3d 704 [2004]), and we decline to review it in the interest of justice. Furthermore, defendant did not make a CPL 440.10 motion, and to the extent his argument raises issues concerning the advice provided by counsel, it is unreviewable on the present, unexpanded record. As an alternative holding, we find that the record, including the transcript of a proceeding held one week before the plea, establishes that defendant received all the sentencing information he needed in order to make an intelligent choice among the available courses of action (see People v Ford, 86 NY2d 397, 403 [1995]).

Defendant’s valid waiver of his right to appeal forecloses review of his claim that his second felony drug offender adjudication was procedurally defective (see People v Callahan, 80 NY2d 273, 281 [1992]; see also People v Samms, 95 NY2d 52, 56-58 [2000]). Aside from the waiver, this claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Concur — Tom, J.E, Friedman, Acosta and Román, JJ.