PEOPLE v. RIVERS (2009)

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered May 14, 2008, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

 Since the final plea proceeding expressly incorporated by reference the allocution conducted at a prior plea proceeding, defendant's prior waiver of his right to appeal is enforceable (see People v. Hickman, 57 A.D.3d 370, 869 N.Y.S.2d 86 [2008];  People v. Morrison, 48 A.D.3d 1044, 852 N.Y.S.2d 495 [2008], lv. denied 10 N.Y.3d 867, 860 N.Y.S.2d 494, 890 N.E.2d 257 [2008] ), and it forecloses defendant's present procedural claim relating to his sentencing.   Furthermore, aside from the waiver, defendant did not preserve his claim that when the court ordered his sentence to be served consecutively to another sentence it misapprehended its discretion under Penal Law § 70.25(2-b) to impose a concurrent sentence upon a finding of mitigating circumstances (see People v. Hamlet, 227 A.D.2d 203, 204, 642 N.Y.S.2d 254 [1996], lv. denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247 [1996] ), and we decline to review it in the interest of justice.   Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters outside the record (see People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).