PEOPLE v. GALLO

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

The PEOPLE, etc., respondent, v. Geno GALLO, appellant.

Decided: September 23, 2008

DAVID S. RITTER, J.P., HOWARD MILLER, MARK C. DILLON, and WILLIAM E. McCARTHY, JJ. Michael G. Paul, New City, 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 April 9, 2007, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant argues that he was denied the effective assistance of counsel.   However, the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265;  People v. Boodhoo, 191 A.D.2d 448, 593 N.Y.S.2d 882;  see generally People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123;  People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213).   In reaching this determination, we have not reviewed the defendant's contention that he was denied effective assistance of counsel by a lack of zealous advocacy at his sentencing, as review of that contention is precluded by his valid waiver of his right to appeal (see People v. Perez, 51 A.D.3d 1042, 857 N.Y.S.2d 502;  People v. Luster, 45 A.D.3d 866, 847 N.Y.S.2d 206).   Further, we have not reviewed his contention that his attorney failed to adequately investigate, prepare, and discuss the case, as that contention is based on matter dehors the record, which cannot be reviewed on direct appeal (see People v. Morrison, 51 A.D.3d 1041, 857 N.Y.S.2d 503).

 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;  People v. Perez, 51 A.D.3d 1042, 857 N.Y.S.2d 502).

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