           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
216
KA 09-01458
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

RICHARD M. MOORE, DEFENDANT-APPELLANT.


SCHLATHER, STUMBAR, PARKS & SALK, LLP, ITHACA (DAVID M. PARKS OF
COUNSEL), FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered June 19, 2008. The judgment convicted defendant,
upon his plea of guilty, of driving while intoxicated, a class E
felony.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of driving while intoxicated as a felony
(Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [former (i)]). We
reject the contention of defendant that he was denied the benefit of
his plea bargain. “Compliance with a plea bargain is to be tested
against an objective reading of the bargain[] and not against a
defendant’s subjective interpretation thereof” (People v Cataldo, 39
NY2d 578, 580). Here, the records of the plea and sentencing
proceedings establish that County Court complied with the plea bargain
when it imposed sentence. Defendant’s further contentions with
respect to his motions to set aside the sentence pursuant to CPL
440.20 are not properly before us on appeal from the judgment of
conviction, and defendant has not obtained permission to appeal from
the order denying those motions (see People v Thayer, 210 AD2d 977;
see also People v Jermain, 56 AD3d 1165, lv denied 11 NY3d 926).




Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
