PEOPLE v. HOOTEN (2006)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered September 28, 2005, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

Waiving his right to appeal, defendant pleaded guilty to attempted criminal possession of a weapon in the third degree.   He was thereafter sentenced in accordance with the negotiated plea agreement to a prison term of 1 to 4 years.   Defendant now appeals.

 We affirm.   Defendant argues that County Court erred in sentencing him without appropriately reviewing his mental health history and by possibly considering the criminal history of another person.¹  However, given defendant's waiver of appeal, these issues, which do not touch upon the legality of the sentence, are not preserved (see People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Griffin, 17 A.D.3d 927, 927, 793 N.Y.S.2d 649 [2005];  People v. Rosado, 300 A.D.2d 838, 840-841, 752 N.Y.S.2d 139 [2002], lv. denied 99 N.Y.2d 619, 757 N.Y.S.2d 830, 787 N.E.2d 1176 [2003];  People v. Anonymous, 293 A.D.2d 374, 374, 740 N.Y.S.2d 212 [2002], lv. denied 98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190 [2002] ).   Defendant's claims are, in any event, wholly unsubstantiated by the record.   Finally, defendant's appeal waiver also precludes him from requesting that we modify the agreed-upon sentence in the interest of justice (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Cain, 29 A.D.3d 1032, 1033, 815 N.Y.S.2d 760 [2006];  People v. Portee, 28 A.D.3d 802, 803, 817 N.Y.S.2d 397 [2006] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Apparently, a driving while intoxicated supporting deposition/bill of particulars pertaining to a different person and noting that person's prior criminal convictions was inadvertently submitted to County Court.

PETERS, J.

MERCURE, J.P., SPAIN, CARPINELLO and KANE, JJ., concur.