PEOPLE v. MULCAHY (2017)

 Defendant appeals from a judgment convicting him upon his plea of guilty of use of a child in a sexual performance as a sexually motivated felony (Penal Law §§ 130.91[1];  263.05).   Contrary to defendant's contention in his main brief, the record establishes that he knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and his challenge to the severity of the sentence is encompassed by that waiver (see id. at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

 Defendant's remaining contentions are raised in his two pro se supplemental briefs.   Defendant's valid waiver of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution (see People v. Gardner, 101 A.D.3d 1634, 1634, 956 N.Y.S.2d 367 [4th Dept 2012] ).   In any event, defendant failed to preserve that challenge for our review, and this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).   Although defendant's contention that defense counsel was ineffective for failing to intervene during the proceedings to make sure that he understood County Court's questions survives his valid waiver of the right to appeal (see People v. Griffin, 120 A.D.3d 1569, 1570, 993 N.Y.S.2d 404 [4th Dept 2014], lv. denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ), that contention is without merit (see generally People v. Conway, 148 A.D.3d 1739, 1741–1742, 50 N.Y.S.3d 739 [4th Dept 2017], lv. denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ).   Defendant's remaining contentions regarding ineffective assistance of counsel are based upon matters dehors the record, and are thus not properly before us (see People v. Byng, 148 A.D.3d 1752, 1753, 49 N.Y.S.3d 331 [4th Dept. 2017], lv. denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017] ).   Defendant waived his further contention that he was denied the opportunity to testify before the grand jury inasmuch as he “fail [ed] to move to dismiss the indictment on that ground within five days of his arraignment on the indictment” (People v. Braction, 26 A.D.3d 778, 779, 809 N.Y.S.2d 739 [4th Dept 2006], lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006], reconsideration denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975 [2006] ).

We have reviewed defendant's remaining contentions in his pro se supplemental briefs and conclude that they are without merit.

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

MEMORANDUM: