State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 19, 2015 106859
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
NICHOLAS C. PANDORI,
Appellant.
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Calendar Date: October 19, 2015
Before: McCarthy, J.P., Rose, Devine and Clark, JJ.
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Linda A. Berkowitz, Saratoga Springs, for appellant.
M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs,
for respondent.
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Rose, J.
Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered May 13, 2014, convicting defendant
upon his plea of guilty of the crime of grand larceny in the
third degree.
Defendant waived indictment, pleaded guilty to a superior
court information charging him with grand larceny in the third
degree and waived his right to appeal. County Court thereafter
sentenced him to five years of probation. Defendant now appeals.
We affirm. Initially, we reject defendant's contention
that his waiver of the right to appeal was invalid. Both County
Court and the written waiver informed him of the separate and
distinct nature of the right to appeal, and County Court
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confirmed that defendant had discussed the waiver with counsel
and understood its ramifications. Therefore, we conclude that
defendant knowingly, intelligently and voluntarily waived the
right to appeal his conviction and sentence (see People v
Fligger, 117 AD3d 1343, 1344 [2014], lv denied 23 NY3d 1061
[2014]; People v Chavis, 117 AD3d 1193, 1193-1194 [2014]).
Although defendant's remaining claim – that his plea was not
voluntarily entered due to the ineffective assistance of counsel
– survives his appeal waiver, it is unpreserved for our review as
the record does not reflect that he made an appropriate
postallocution motion (see People v Smith, 119 AD3d 1088, 1089
[2014], lv denied 24 NY3d 1089 [2014]; People v Livziey, 117 AD3d
1341, 1342 [2014]). To the extent that his claim addresses
matters outside the record, they are more properly the subject of
a CPL article 440 motion (see People v Stroman, 107 AD3d 1023,
1025 [2013], lv denied 21 NY3d 1046 [2013]; People v Planty, 85
AD3d 1317, 1318 [2011], lv denied 17 NY3d 820 [2011]).
McCarthy, J.P., Devine and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court