PEOPLE v. DeLUCA (2007)

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered July 19, 2006, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's waiver of his right to appeal precludes appellate review of the denial of his motion to dismiss the indictment on the ground that he was deprived of his statutory right to testify before the grand jury (see People v. Harris, 15 A.D.3d 848, 788 N.Y.S.2d 765;  People v. Beaton, 303 A.D.2d 593, 594, 756 N.Y.S.2d 489;  People v. Addison, 196 A.D.2d 875, 602 N.Y.S.2d 61).   The waiver also precludes appellate review of the defendant's claims of ineffective assistance of counsel which did not affect the voluntariness of his plea (see People v. Scott, 39 A.D.3d 570, 571, 834 N.Y.S.2d 226;  People v. Escobedo, 7 A.D.3d 539, 775 N.Y.S.2d 594;  People v. Demosthene, 2 A.D.3d 874, 769 N.Y.S.2d 746).   In any event, by pleading guilty, the defendant forfeited his claim that he was denied his right to testify before the grand jury (see People v. Lopez, 6 N.Y.3d 248, 256-257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Beaton, 303 A.D.2d at 594, 756 N.Y.S.2d 489;  People v. Standley, 269 A.D.2d 614, 615, 704 N.Y.S.2d 825;  People v. Lyde, 247 A.D.2d 555, 668 N.Y.S.2d 483), and his claims of ineffective assistance of counsel which did not directly involve the plea-bargaining process (see People v. Turner, 40 A.D.3d 1018, 1019, 834 N.Y.S.2d 666, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761;  People v. Silent, 37 A.D.3d 625, 831 N.Y.S.2d 194;  People v. Gutierrez, 35 A.D.3d 883, 884, 827 N.Y.S.2d 267).

 To the extent that the defendant is claiming that the ineffective assistance of counsel rendered his plea involuntary, his contention is based on matter dehors the record, which cannot be reviewed on direct appeal (see People v. Herdt, 45 A.D.3d 698, 844 N.Y.S.2d 882;  People v. Rusielewicz, 45 A.D.3d 704, 846 N.Y.S.2d 243).   Although the defendant made a post-conviction motion to vacate the judgment pursuant to CPL article 440, the issues raised in that motion are not properly before us, as he was denied leave to appeal from the denial of that motion (see People v. Rivas, 206 A.D.2d 549, 550, 614 N.Y.S.2d 753;  People v. DaCosta, 217 A.D.2d 661, 662, 630 N.Y.S.2d 247;  People v. Esposito, 157 A.D.2d 850, 551 N.Y.S.2d 805).