People v Bebenista (2008 NY Slip Op 51130(U))

People v Bebenista (Romualdo)

2008 NY Slip Op 51130(U) [19 Misc 3d 145(A)]

Decided on May 29, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Romualdo Bebenista, Appellant.

Appeal from judgments of the District Court of Nassau County, First District (Francis Ricigliano, J.), rendered September 27, 2006. The judgments convicted defendant, upon his pleas of guilty, of two counts of driving while intoxicated, speeding, failing to produce proof of insurance, driving in violation of the terms of a conditional license, and unsafe lane change.

Because the sentences of probation were part of defendant's negotiated plea agreement, he cannot now complain that the sentences were excessive and that he should, instead, have been sentenced to a conditional discharge (People v Domin, 13 AD3d 391, 392 [2004]; People v Miller, 1 AD3d 613, 614 [2003]; People v Kazepis, 101
AD2d 816, 817 [1984]). Moreover, there is no indication that the court below relied on any "materially untrue assumptions or misinformation" in imposing sentences of probation (People v Metellus, 46 AD3d 578, 579 [2007], citing People v Naranjo, 89 NY2d 1047, 1049 [1997]) nor did defendant below, when the opportunity presented, specify any deficiencies or inaccuracies in the presentence report, aside from a general reference to the report's account of defendant's "physical status" (e.g. People v Poggiali, 19 Misc 3d 134[A], 2008 NY Slip Op 50694[U] [App Term, 9th & 10th Jud Dists 2008] [noting that although the probation report "was provided to defense counsel prior to (the imposition of) sentence . . . defendant did not challenge either the factual information set forth in the report or the (sentencing) recommendation"]).

With respect to his claim that he did not receive the effective assistance of counsel, [*2]defendant failed to preserve the issue for appellate review by moving to withdraw his plea on those grounds (People v Wynn, 40 AD3d 893 [2007]; People v Catts, 26 AD3d 341 [2006]), and insofar as the claims involve matters dehors the record, they cannot be reviewed on appeal (People v Thompson, 28 AD3d 498 [2006]).

We have considered defendant's remaining claims and find them unpreserved (People v Green, 54 NY2d 878, 880 [1981]; People v Pertillar, 37 AD3d 740 [2007]) or without merit.