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

5
KA 10-02295
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BILLIE JO WEBSTER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JAMES L. DOWSEY, III, ELLICOTTVILLE (KELIANN M. ELNISKI OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered September 13, 2010. The judgment convicted
defendant, upon her plea of guilty, of attempted forgery in the second
degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
of County Court convicting her upon her guilty plea of attempted
forgery in the second degree (Penal Law §§ 110.00, 170.10). In appeal
No. 2, defendant appeals from a judgment of the same court revoking
her sentence of probation for a misdemeanor charge to which she
previously had pleaded guilty and resentencing her to one year in
jail. Defendant’s plea in appeal No. 1 necessarily constituted an
admission that she violated the terms and conditions of her probation
in appeal No. 2.

     Defendant’s primary contention in each appeal is that she did not
receive the sentence promised by the court and thus that her pleas in
both appeals were not knowingly, voluntarily and intelligently
entered. Although that contention survives defendant’s valid waiver
of the right to appeal entered in connection with the plea in appeal
No. 1 and thus in connection with the plea in appeal No. 2, defendant
failed to preserve that contention for our review by moving to
withdraw her pleas or to vacate the judgments of conviction (see
People v Montanez, 89 AD3d 1409). We decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Defendant’s contention that she
received ineffective assistance of counsel because her attorney failed
to move to vacate the judgments is based on matters outside the record
                                 -2-                             5
                                                         KA 10-02295

and therefore is not reviewable on direct appeal (see People v
Rodriguez, 59 AD3d 173, 173-174, lv denied 12 NY3d 858). Contrary to
defendant’s further contention, the sentence imposed with respect to
both appeals is legal, and her challenge to the severity of the
sentence in each appeal is foreclosed by her valid waiver of the right
to appeal (see People v Lopez, 6 NY3d 248, 256).




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
