        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

572
KA 10-01435
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID W. NEWBOULD, DEFENDANT-APPELLANT.


M THOMAS SCOTT & ASSOCIATES, GRAND ISLAND (MARY THOMAS SCOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered May 17, 2010. The judgment convicted defendant,
upon his plea of guilty, of grand larceny in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of grand larceny in the third degree (Penal Law §
155.35 [1]), defendant contends that the plea was involuntary because
County Court failed to inform him that his sentence would be served
consecutively to any previously imposed term of incarceration. By
failing to move to withdraw the plea or to vacate the judgment of
conviction, defendant failed to preserve that contention for our
review (see People v Tantao, 41 AD3d 1274, lv denied 9 NY3d 882;
People v Aguayo, 37 AD3d 1081, lv denied 8 NY3d 981). In any event,
that contention is without merit because defendant failed to establish
that he had an undischarged sentence to which the sentence imposed
upon his grand larceny conviction would be served consecutively (cf.
People v Morbillo, 56 AD3d 694, lv denied 12 NY3d 786, 788; People v
Bobo, 41 AD3d 129, lv denied 9 NY3d 873).

     Defendant further contends that defense counsel was ineffective
because he failed to preserve for our review defendant’s contention
with respect to the voluntariness of the plea. “ ‘Deprivation of
appellate review . . . does not per se establish ineffective
assistance of counsel’ . . . but, rather, a defendant must also show
that his or her contention would be meritorious upon appellate review”
(People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922). Here,
defendant failed to make such a showing because his contention
                                 -2-                              572
                                                            KA 10-01435

regarding the voluntariness of the plea is without merit.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
