                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   107213
________________________________

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

DONALD FAIRWEATHER JR.,
                    Appellant.
________________________________


Calendar Date:   January 10, 2017

Before:   Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.

                             __________


      Neal D. Futerfas, White Plains, for appellant, and
appellant pro se.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered July 18, 2014, convicting defendant upon
his plea of guilty of the crime of vehicular manslaughter in the
first degree.

      On September 25, 2013, defendant was driving his vehicle at
a high speed while intoxicated and struck an oncoming vehicle,
causing the death of Vadim Mushtak and serious injuries to
Mushtak's wife. Defendant was thereafter charged in a six-count
indictment with various offenses stemming from the incident. In
full satisfaction of the indictment, defendant pleaded guilty to
vehicular manslaughter in the first degree and waived his right
to appeal. County Court, which made no sentencing commitment as
                              -2-                  107213

part of the plea agreement, sentenced defendant to 5 to 15 years
in prison with a recommendation that defendant serve the full 15
years. Defendant now appeals.

      Defendant argues that the sentence imposed by County Court
is harsh and excessive, but that challenge is precluded by his
unchallenged waiver of the right to appeal (see People v Guzman-
Moore, 144 AD3d 1267, 1268 [2016]; People v Perkins, 140 AD3d
1401, 1403 [2016], lv denied 28 NY3d 1126 [2016]). Defendant
also alleges that he did not receive the effective assistance of
counsel. His claim survives his appeal waiver to the extent that
it impacts the voluntariness of his guilty plea, but is
unpreserved given his apparent failure to make an appropriate
postallocution motion (see People v Macon, 142 AD3d 739, 740
[2016], lvs denied 28 NY3d 1073, 1075 [2016]; People v Ramos, 135
AD3d 1234, 1235 [2016], lv denied 28 NY3d 935 [2016]). In any
event, the claim concerns matters outside of the record and it is
more properly the subject of a CPL article 440 motion (see People
v Crespo, 143 AD3d 412, 413 [2016]; People v Perkins, 140 AD3d at
1403).

     Garry, J.P., Rose, Clark and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
