PEOPLE v. DIMMICK (2008)

Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of assault in the second degree (Penal Law § 120.05 [2] ).   Contrary to the contention of defendant, his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that valid waiver encompasses defendant's challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).   Defendant further contends that he was denied due process at sentencing because County Court relied on biased, inaccurate information in the presentence report.   We reject that contention inasmuch as the sentencing transcript establishes that the court did not rely on any materially untrue assumptions or misinformation in the presentence report (cf. Townsend v. Burke, 334 U.S. 736, 740-741, 68 S.Ct. 1252, 92 L.Ed. 1690;  see generally People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356).   Further, defendant took advantage of the opportunity that he was afforded to refute any aggravating factors in the presentence report that may have negatively influenced the court (see People v. Perry, 36 N.Y.2d 114, 119, 365 N.Y.S.2d 518, 324 N.E.2d 878;  People v. Harrington, 3 A.D.3d 737, 739, 770 N.Y.S.2d 792, lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 732, 831 N.E.2d 977).   To the extent that the contention of defendant that he was denied effective assistance of counsel is not forfeited by the plea and survives the waiver of the right to appeal (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), it concerns matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see People v. Leno, 21 A.D.3d 1399, 801 N.Y.S.2d 207, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484;   People v. Michalski, 15 A.D.3d 918, 919, 788 N.Y.S.2d 776, lv. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143, 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164, cert. denied 547 U.S. 1077, 126 S.Ct. 1787, 164 L.Ed.2d 529, reh. denied 547 U.S. 1176, 126 S.Ct. 2349, 164 L.Ed.2d 863).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: