PEOPLE v. KARWAN

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

The PEOPLE of the State of New York, Respondent, v. Richard F. KARWAN, Appellant.

Decided: September 29, 2005

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and KANE, JJ. Tara Brower Wells, Latham, for appellant. Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered October 16, 2003, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree.

Defendant agreed to be prosecuted by a superior court information charging him with criminal possession of stolen property in the fourth degree in connection with his alleged theft of a truck.   He pleaded guilty to this charge and waived his right to appeal.   Although no specific sentence was promised, County Court agreed to a cap of 1 1/313 to 4 years in prison.   In addition, County Court agreed to allow defendant to participate in an inpatient drug treatment program before facing any prison time.   Defendant began the program, but left before completing it, resulting in the issuance of a bench warrant.   He was subsequently sentenced to 1 to 3 years in prison and now appeals.

 Initially, we note that defendant's challenge to the effectiveness of his trial counsel survives his waiver of the right to appeal only to the extent that it impacts the voluntariness of his plea (see People v. Sales, 18 A.D.3d 962, 962-963, 794 N.Y.S.2d 719 [2005];  People v. Jones, 18 A.D.3d 964, 965, 795 N.Y.S.2d 765 [2005], lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005] ).   In support of his assertion that counsel was ineffective, defendant takes issue with counsel's failure to engage in certain discovery, make pretrial motions, require the prosecution to present its case to a grand jury and obtain a more favorable sentence.   None of these alleged deficiencies bears upon the voluntariness of defendant's plea (see e.g. People v. Daniels, 16 A.D.3d 780, 780, 790 N.Y.S.2d 759 [2005] ).   In any event, defendant's failure to move to withdraw the plea or vacate the judgment of conviction renders this claim unpreserved (see People v. Sales, supra at 963, 794 N.Y.S.2d 719;  People v. Jones, supra at 965, 795 N.Y.S.2d 765).   Furthermore, inasmuch as we find that defendant entered a knowing, voluntary and intelligent plea and waiver of the right to appeal, we decline to review his claim that the sentence was harsh and excessive (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Clow, 10 A.D.3d 803, 804, 782 N.Y.S.2d 148 [2004] ).   We additionally find no basis to exercise our interest of justice jurisdiction in that regard (see People v. Schwing, 13 A.D.3d 725, 726, 786 N.Y.S.2d 249 [2004] ).

ORDERED that the judgment is affirmed.

CARDONA, P.J.

PETERS, SPAIN, CARPINELLO and KANE, JJ., concur.

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