Opinion
February 16, 2000
Appeal from Judgment of Livingston County Court, Cicoria, J. — Felony Driving While Intoxicated.
PRESENT: WISNER, J. P., HURLBUTT, SCUDDER AND LAWTON, JJ.
Appeal from judgment insofar as it imposes sentence of incarceration unanimously dismissed and judgment affirmed. Memorandum: We previously held this case, reserved decision, granted the motion of appellate counsel to be relieved of his assignment and directed the assignment of new appellate counsel ( People v. James, 252 A.D.2d 997). We now conclude that County Court properly proceeded with defendant's sentencing. At sentencing, defendant stated to the court that the assigned counsel who represented him at the time of his plea of guilty "more or less told me to plead guilty to something I didn't do." Defendant was then represented by a different member of the Public Defender's office, who made an oral application for the Public Defender's office to be relieved as defendant's counsel because defendant had filed a grievance against a member of the office. Defendant's complaint with respect to the attorney who appeared with defendant at the plea was clearly expressed to the court. The court determined that defendant could not afford to retain counsel and did not wish to represent himself, and thus the court properly exercised its discretion in denying the motion of the Public Defender's office to be relieved as defendant's counsel ( cf., People v. Sides, 75 N.Y.2d 822, 824-825). The contention of defendant that he was denied effective assistance of counsel at the plea because of advice he received from his attorney is based on information outside the record before us and is therefore properly raised by a CPL article 440 motion. The record, however, does not support the contention of defendant that he was denied effective assistance of counsel at sentencing ( see, People v. Baldi, 54 N.Y.2d 137, 147). Finally, defendant has completed serving his sentence, and thus his contention that the sentence is unduly harsh or severe is moot ( see, People v. Dukes, 256 A.D.2d 1181, lv denied 93 N.Y.2d 872).