Opinion
KA 02-02069.
December 31, 2003.
Appeal from a judgment of Monroe County Court (Maloy, J.), entered September 10, 2001, convicting defendant upon his plea of guilty of assault in the second degree.
TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05). Defendant was sentenced as a second felony offender to a determinate term of imprisonment of five years and a five-year period of postrelease supervision. The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence ( see People v. Allen, 82 N.Y.2d 761, 763; People v. Figueroa, 283 A.D.2d 943, lv denied 96 N.Y.2d 862). The further contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to challenge a prior felony conviction in Virginia involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 ( see People v. Reynolds, 309 A.D.2d 976). The record does not specify the Virginia statute under which defendant was convicted, and thus we cannot determine whether there is a comparable statute in New York ( see generally People v. Gonzalez, 61 N.Y.2d 586, 588-589).