People v Janish, 2011 NY Slip Op 09182 [90 AD3d 543]

Dcmbr 20, 2011

Appellate Division, First Department

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The Legal Aid Society, New York (Steven Banks of counsel), and White & Case LLP, New York (Louis F. O’Neill of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 22, 2008 (as amended September 23, 2008), convicting defendant, upon his plea of guilty, of enterprise corruption, securities fraud in violation of General Business Law § 352-c (5), grand larceny in the second degree, perjury in the first degree and criminal contempt in the second degree, and sentencing him to an aggregate term of 4 to 12 years, with restitution in the amount of $4,460,886, unanimously affirmed.

Defendant does not dispute that his waiver of his right to appeal was knowing, intelligent, and voluntary. Although he “attempt[s] to avoid the effect of his waiver . . . by invoking the exception . . . for challenges to the legality of the sentence” ( People v Callahan , 80 NY2d 273, 280-281 [1992]), we look at “the actual gist of [his appellate] claim,” not “the label [he] assign[s] to” it ( id . at 281). As in Callahan , “it is apparent that his challenge is addressed not to the legality of the sentence . . . Rather, defendant’s appellate claim [i]s addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination” ( id .). Therefore, his current claims are waived ( see id. ; see also People v Chamberlain , 35 AD3d 961 , 962 [2006], lv denied 8 NY3d 920 [2007]; People v Williams , 290 AD2d 590, 590-591 [2002]).

Furthermore, regardless of the waiver, defendant’s claims are also unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Concur—Gonzalez, P.J., Mazzarelli, Andrias, Sweeny and RomÁn, JJ..