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

173
KA 11-02530
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

KENNETH R. ORTIZ, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


MARCEL J. LAJOY, ALBANY, FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered September 26, 2011. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the fourth
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of grand larceny in the fourth degree (Penal Law §
155.30 [1]), defendant contends that he was denied effective
assistance of counsel based upon the failure of his original attorney
to facilitate his testimony before the grand jury and by his new
attorney’s failure to move to dismiss the indictment pursuant to CPL
190.50 (5) (c) based upon the alleged violation of his right to
testify before the grand jury. Inasmuch as that contention does not
impact the voluntariness of defendant’s plea, it is foreclosed by his
waiver of the right to appeal (see People v Bonner, 21 AD3d 1184,
1185-1186, lv denied 6 NY3d 773; People v Carroll, 21 AD3d 586, 586-
587) and the guilty plea (see People v Turner, 40 AD3d 1018, 1019, lv
denied 9 NY3d 882; People v Vincent, 305 AD2d 1108, 1109, lv denied
100 NY2d 588). In addition, because “defendant pleaded guilty with
the assistance of new counsel, he forfeited the right to argue that he
was denied the opportunity to testify before the grand jury as the
result of the prior attorney’s conduct” (People v Weems, 61 AD3d 472,
472, lv denied 13 NY3d 750; see People v Moore, 61 AD3d 494, 495, lv
denied 12 NY3d 918).

     We reject defendant’s contention that the fine imposed as part of
his sentence is illegal in view of the People’s concession that the
stolen property was returned and he realized no financial gain from
the crime (see People v McFarlane, 18 AD3d 577, 578, lv denied 5 NY3d
                                 -2-                           173
                                                         KA 11-02530

791). Defendant’s further contention that the amount of the fine is
unduly harsh and severe survives his waiver of the right to appeal
because that amount was not included in the terms of the plea bargain
(see People v Etkin, 284 AD2d 579, 580-581, lv denied 96 NY2d 862).
Defendant, however, failed to preserve his challenge to the amount of
the fine for our review (see id. at 581), and we decline to exercise
our power to address it as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]).




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
