People v. Fairweather

Appellate Division of the Supreme Court of New York

People v. Fairweather

147 A.D.3d 1153, 46 N.Y.S.3d 439

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 9, 2017

Docket107213

StatusPublished

Cited by8 cases

This text of 147 A.D.3d 1153 (People v. Fairweather) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fairweather, 147 A.D.3d 1153, 46 N.Y.S.3d 439 (N.Y. Ct. App. 2017).

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Opinion

*1154 Devine, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 18, 2014, convicting defendant upon his plea of guilty of the crime of vehicular manslaughter in the first degree.

On September 25, 2013, defendant was driving his vehicle at a high speed while intoxicated and struck an oncoming vehicle, causing the death of Vadim Mushtak and serious injuries to Mushtak’s wife. Defendant was thereafter charged in a six-count indictment with various offenses stemming from the incident. In full satisfaction of the indictment, defendant pleaded guilty to vehicular manslaughter in the first degree and waived his right to appeal. County Court, which made no sentencing commitment as part of the plea agreement, sentenced defendant to 5 to 15 years in prison with a recommendation that defendant serve the full 15 years. Defendant now appeals.

Defendant argues that the sentence imposed by County Court is harsh and excessive, but that challenge is precluded by his unchallenged waiver of the right to appeal (see People v Guzman-Moore, 144 AD3d 1267, 1268 [2016]; People v Perkins, 140 AD3d 1401, 1403 [2016], lv denied 28 NY3d 1126 [2016]). Defendant also alleges that he did not receive the effective assistance of counsel. His claim survives his appeal waiver to the extent that it impacts the voluntariness of his guilty plea, but is unpreserved given his apparent failure to make an appropriate postallocution motion (see People v Macon, 142 AD3d 739, 740 [2016], lv denied 28 NY3d 1073 [2016]; People v Ramos, 135 AD3d 1234, 1235 [2016], lv denied 28 NY3d 935 [2016]). In any event, the claim concerns matters outside of the record and it is more properly the subject of a CPL article 440 motion (see People v Crespo, 143 AD3d 412, 413 [2016]; People v Perkins, 140 AD3d at 1403).

Garry, J.P., Rose, Clark and Mulvey, JJ., concur.

Ordered that the judgment is affirmed.

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*1154 Devine, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 18, 2014, convicting defendant upon his plea of guilty of the crime of vehicular manslaughter in the first degree.

On September 25, 2013, defendant was driving his vehicle at a high speed while intoxicated and struck an oncoming vehicle, causing the death of Vadim Mushtak and serious injuries to Mushtak’s wife. Defendant was thereafter charged in a six-count indictment with various offenses stemming from the incident. In full satisfaction of the indictment, defendant pleaded guilty to vehicular manslaughter in the first degree and waived his right to appeal. County Court, which made no sentencing commitment as part of the plea agreement, sentenced defendant to 5 to 15 years in prison with a recommendation that defendant serve the full 15 years. Defendant now appeals.

Defendant argues that the sentence imposed by County Court is harsh and excessive, but that challenge is precluded by his unchallenged waiver of the right to appeal (see People v Guzman-Moore, 144 AD3d 1267, 1268 [2016]; People v Perkins, 140 AD3d 1401, 1403 [2016], lv denied 28 NY3d 1126 [2016]). Defendant also alleges that he did not receive the effective assistance of counsel. His claim survives his appeal waiver to the extent that it impacts the voluntariness of his guilty plea, but is unpreserved given his apparent failure to make an appropriate postallocution motion (see People v Macon, 142 AD3d 739, 740 [2016], lv denied 28 NY3d 1073 [2016]; People v Ramos, 135 AD3d 1234, 1235 [2016], lv denied 28 NY3d 935 [2016]). In any event, the claim concerns matters outside of the record and it is more properly the subject of a CPL article 440 motion (see People v Crespo, 143 AD3d 412, 413 [2016]; People v Perkins, 140 AD3d at 1403).

Garry, J.P., Rose, Clark and Mulvey, JJ., concur.

Ordered that the judgment is affirmed.

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Bluebook (online)

147 A.D.3d 1153, 46 N.Y.S.3d 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fairweather-nyappdiv-2017.

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