People v. Martinez

33 A.D.3d 631, 821 N.Y.S.2d 660

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered August 17, 2004, convicting him of robbery in the first degree, 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 knowing, voluntary, and intelligent is unpreserved for appellate review because he did not move to withdraw the plea or to vacate the conviction (see People v Bevins, 27 AD3d 572 [2006]). In any event, his claim that he was oblivious to what was going on because he was on medication is belied by the transcript of the plea proceeding, which shows that he answered all of the court’s questions appropriately, allocuted to the crime, and expressly stated that he knew what was going on and was thinking clearly.

The defendant’s claim that he did not receive effective assistance of counsel is not reviewable on direct appeal because it is based on matter dehors the record (see People v Whitaker, 27 AD3d 499 [2006]).

Finally, the defendant’s effective waiver of the right to appeal encompassed his argument that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248 [2006]; People v Aveni, 7 AD3d 632 [2004]; People v Thomas, 262 AD2d 588 [1999]). Miller, J.E, Luciano, Rivera and Spolzino, JJ., concur.