           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1396
KA 11-01586
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

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.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered June 21, 2011. The judgment convicted
defendant, upon her plea of guilty, of vehicular manslaughter in the
first degree and vehicular assault in the first degree.

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

     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 AD3d
1507, 1507, lv denied 15 NY3d 804; People v Rizek [appeal No. 1], 64
AD3d 1180, lv denied 13 NY3d 862). 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 AD3d 1088, 1089, lv denied 12 NY3d 816), 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 AD3d 1428, 1428, lv denied 16
NY3d 896).


Entered:   December 21, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
