                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   106566
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MICHAEL GARRY,
                    Appellant.
________________________________


Calendar Date:   October 23, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


      Grasso, Rodriguez & Grasso, Schenectady (Nicholas J. Grasso
of counsel), for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Schenectady
County (Drago, J.), rendered October 22, 2013, convicting
defendant upon his plea of guilty of the crimes of arson in the
third degree and criminal sale of a controlled substance in the
fifth degree.

      In May 2012, defendant was indicted for three counts of
criminal sale of a controlled substance in the third degree and
three counts of criminal possession of a controlled substance in
the third degree. Defendant later waived indictment and was
charged by superior court information with an additional charge
of arson in the third degree. Defendant thereafter pleaded
guilty to one count of arson in the third degree and one count of
                              -2-                106566

criminal possession of a controlled substance in the fifth degree
in satisfaction of all outstanding charges and waived his right
to appeal with regard thereto. County Court thereafter sentenced
him in accordance with the revised plea agreement to concurrent
terms of imprisonment, the maximum being a term of 4 to 12 years,
and ordered him to pay restitution.1 Defendant appeals.

      We affirm. With regard to defendant's claim that he was
denied the effective assistance of counsel, to the extent that
such claim is alleged to have impacted the voluntariness of his
plea, it survives his appeal waiver; however, it is not preserved
for our review as the record does not reflect that he moved to
withdraw his plea (see People v Ortiz, 127 AD3d 1416, 1417
[2015], lv denied ___ NY3d ___ [Oct. 1, 2015]) and the narrow
exception to the preservation requirement is inapplicable
inasmuch as defendant made no statements during his plea colloquy
that would cast doubt on the voluntariness of his plea (see
People v Van Clief, 122 AD3d 1062, 1063 [2014], lv denied 24 NY3d
1221 [2015]). Further, to the extent that defendant contends
that counsel made certain misrepresentations regarding the terms
of the plea agreement, such claims involve matters outside the
record and, therefore, are more properly the subject of a CPL
article 440 motion (see People v Toback, 125 AD3d 1060, 1061-1062
[2015], lv denied 25 NY3d 993 [2015]; People v Stroman, 106 AD3d
1268, 1271 [2013], lv denied 21 NY3d 1046 [2013]).

      Additionally, upon review of the plea colloquy and
defendant's written waiver, we find that defendant knowingly,
intelligently and voluntarily waived his right to appeal (see
People v Lopez, 6 NY3d 248, 256 [2006]; People v Viele, 130 AD3d
1097, 1097 [2015]). In light of defendant's valid appeal waiver,
defendant is precluded from challenging the agreed-upon sentence
as harsh and excessive (see People v Tyler, 130 AD3d 1383, 1385
[2015]).


    1
        The plea agreement originally called for a prison
sentence of 5 to 15 years; however, upon review of the
presentence investigation report and with defendant's consent,
County Court ultimately reduced defendant's maximum sentence to 4
to 12 years.
                        -3-                  106566

McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
