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People v. Gibbs

95 A.D.3d 1506 Court N.Y. App. Div. Decision date 2012-05-17 English

Delivered by Stein, J.

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p. 1506
The People of the State of New York, Respondent, v Daryl W. Gibbs, Appellant.
[943 NYS2d 916] —

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered March 31, 2011, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

In satisfaction of a seven-count indictment, defendant pleaded guilty in 2010 to criminal contempt in the first degree stemming from his alleged violation of a November 2007 temporary order of protection. As part of the negotiated plea agreement, defendant also waived his right to appeal.[1] County Court then sentenced defendant to a prison term of lVs to 4 years and this appeal ensued.

On appeal, defendant asserts that his conviction should be reversed inasmuch as the temporary order of protection upon

* Defendant does not challenge the validity of such waiver.

p. 1507
which the conviction is based was void because it automatically expired upon the resolution of the 2007 criminal proceeding. Based on the record before us, defendant did not preserve this claim by moving to withdraw his plea (see People v Charlotten, 44 AD3d 1097 , 1098 [2007]). For the same reason, defendant’s claim of ineffective assistance of counsel is unpreserved for our review (see People v Clark, 52 AD3d 951 , 952 [2008], lv denied 11 NY3d 831 [2008]).

Defendant’s challenge to the severity of his sentence is precluded by his valid waiver of the right to appeal (see People v Lopez, 6 NY3d 248 , 255 [2006]; People v Sherman, 91 AD3d 982 , 983 [2012]). Finally, defendant’s remaining contentions have been considered and found to be unavailing.

Rose, J.E, Malone Jr, Garry and Egan Jr, JJ, concur. Ordered that the judgment is affirmed.

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