PEOPLE v. HUBBARD

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Matthew HUBBARD, appellant.

Decided: February 21, 2006

ROBERT W. SCHMIDT, J.P., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. Del Atwell, Montauk, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 9, 2004, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's valid waiver of his right to appeal precludes review of his challenge to the sentence as excessive (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145, 2006 WL 346191 [Feb. 16, 2006];  People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Iorio, 276 A.D.2d 564, 714 N.Y.S.2d 245).   The fact that the defendant was advised of his right to appeal at the end of the sentencing proceeding did not vitiate his valid waiver of that right (see People v. Moissett, 76 N.Y.2d 909, 912, 563 N.Y.S.2d 43, 564 N.E.2d 653;  People v. Manzullo, 14 A.D.3d 717, 789 N.Y.S.2d 246).

 Based on the record, a sentence of lifetime probation was not available to the defendant because, inter alia, the People did not recommend such a sentence (see Penal Law § 65.00[1][b] ).  Accordingly, the defendant's contentions that the sentencing court abused its discretion in failing to consider a sentence of lifetime probation, and that his trial counsel provided ineffective assistance by failing to advocate for a sentence of lifetime probation, are without merit (see Penal Law § 65.00[1][b] ).

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