Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Paul F. ATKINSON, Also Known As Paul Francis Atkinson, Also Known As Paul Atkinson, Defendant–Appellant.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered December 20, 2011. The judgment convicted defendant, upon his plea of guilty, of arson in the second degree. Keliann M. Elniski, Orchard Park, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered December 20, 2011. The judgment convicted defendant, upon his plea of guilty, of arson in the second degree.
Keliann M. Elniski, Orchard Park, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of arson in the second degree (Penal Law § 150.15), defendant contends that he was denied effective assistance of counsel because defense counsel failed to seek suppression of tangible evidence and his statement to the police and to advise him of certain rights forfeited as a consequence of his plea. That contention survives his guilty plea only insofar as he asserts that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” ( People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814,lv. denied9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [internal quotation marks omitted]; see People v. Culver, 94 A.D.3d 1427, 1427–1428, 942 N.Y.S.2d 832,lv. denied19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110;People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196,lv. denied6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160;see also People v. Strickland, 103 A.D.3d 1178, 1178, 958 N.Y.S.2d 640). Defendant's contention with respect to ineffective assistance of counsel, however, concerns matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 ( see Strickland, 103 A.D.3d at ––––;see also People v. Williams, 48 A.D.3d 1108, 1109, 850 N.Y.S.2d 321,lv. denied 10 N.Y.3d 872, 860 N.Y.S.2d 498, 890 N.E.2d 261). The further contention of defendant that his plea was not knowingly, intelligently or voluntarily entered is not preserved for our review because defendant failed to move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. Montanez, 89 A.D.3d 1409, 1409, 932 N.Y.S.2d 396;People v. Connolly, 70 A.D.3d 1510, 1511, 894 N.Y.S.2d 694,lv. denied14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010). In any event, we conclude that defendant understood the nature and consequences of the plea and that it was knowingly, intelligently and voluntarily entered ( see People v. White, 85 A.D.3d 1493, 1494, 925 N.Y.S.2d 915;People v. Watkins, 77 A.D.3d 1403, 1403–1404, 909 N.Y.S.2d 233,lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327). Defendant's contention that he was not credited for jail time that he served before entering his plea is not properly raised on direct appeal from the judgment of conviction and instead the proper procedural vehicle is a CPLR article 78 proceeding ( see People v. Person, 256 A.D.2d 1232, 1232–1233, 684 N.Y.S.2d 367,lv. denied 93 N.Y.2d 856, 688 N.Y.S.2d 504, 710 N.E.2d 1103;People v. Searor, 163 A.D.2d 824, 824, 559 N.Y.S.2d 840,lv. denied 76 N.Y.2d 896, 561 N.Y.S.2d 559, 562 N.E.2d 884). Finally, under the circumstances here, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.