Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Bobbie J. MONAGHAN, Defendant–Appellant.
Keliann M. Elniski, Orchard Park, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Aaron D. Carr of Counsel), for Respondent.
Keliann M. Elniski, Orchard Park, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Aaron D. Carr of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting her upon her plea of guilty of vehicular manslaughter in the first degree (Penal Law § 125.13[1] ) and vehicular assault in the first degree (§ 120.04[1] ), defendant contends that her sentence is unduly harsh and severe. We reject that contention. We note as an initial matter that defendant's waiver of the right to appeal does not encompass her challenge to the severity of the sentence because she purportedly waived her right to appeal before County Court advised her of the maximum sentence she could receive ( see People v. Farrell, 71 A.D.3d 1507, 1507, 897 N.Y.S.2d 357,lv. denied15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898;People v. Rizek [appeal No. 1], 64 A.D.3d 1180, 881 N.Y.S.2d 752,lv. denied13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101). Nevertheless, we reject defendant's challenge to the severity of the sentence.
Defendant further contends that she received ineffective assistance of counsel. To the extent that such contention survives her plea of guilty and waiver of the right to appeal ( see People v. Gimenez, 59 A.D.3d 1088, 1089, 872 N.Y.S.2d 625,lv. denied12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932), it is not properly before us because it involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 ( see People v. Johnson, 81 A.D.3d 1428, 1428, 917 N.Y.S.2d 487,lv. denied16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.