PEOPLE v. MARCINAK (2010)

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered November 7, 2008, convicting him of driving while ability impaired by drugs, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 We agree with the defendant's contention that the purported waiver of his right to appeal was invalid (see People v. Woods, 67 A.D.3d 829, 887 N.Y.S.2d 867;  People v. Dongo, 244 A.D.2d 353, 353, 663 N.Y.S.2d 878;  cf. People v. Silent, 37 A.D.3d 625, 831 N.Y.S.2d 194).   The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review because he failed to move to withdraw his plea of guilty prior to sentencing (see CPL 220.60 [3];  People v. Velez, 64 A.D.3d 799, 799, 882 N.Y.S.2d 712;  People v. Finn, 63 A.D.3d 755, 756, 879 N.Y.S.2d 720).   In any event, the record demonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Owens, 67 A.D.3d 1029, 888 N.Y.S.2d 760;  People v. Woods, 67 A.D.3d 829, 887 N.Y.S.2d 867).   The defendant's contention that he was denied the effective assistance of counsel is without merit (see People v. Finn, 63 A.D.3d at 756, 879 N.Y.S.2d 720).   Furthermore, since the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis to now complain that his sentence was excessive (see People v. De Alvarez, 59 A.D.3d 732, 733, 873 N.Y.S.2d 724;  People v. Fanelli, 8 A.D.3d 296, 296, 777 N.Y.S.2d 320;  People v. Mejia, 6 A.D.3d 630, 631, 774 N.Y.S.2d 801;  People v. Kazepis, 101 A.D.2d 816, 816-817, 475 N.Y.S.2d 351).