Opinion
431 KA 19-00803
04-30-2021
The PEOPLE of the State of New York, Respondent, v. Ronald D. ROBINSON, Jr., Defendant-Appellant. (Appeal No. 1.)
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NOLAN D. PITKIN OF COUNSEL), FOR RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NOLAN D. PITKIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon a plea of guilty, of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ). In appeal No. 2, defendant appeals from a judgment convicting him, upon a plea of guilty, of attempted assault in the second degree (§§ 110.00, 120.05 [2]). The two pleas were entered in a single plea proceeding. Although not raised by the parties, the purported waiver of the right to appeal here is invalid (see People v. Cruz , 182 A.D.3d 999, 999, 120 N.Y.S.3d 914 [4th Dept. 2020] ; People v. McKenzie [Appeal No. 2], 181 A.D.3d 1319, 1320, 122 N.Y.S.3d 836 [4th Dept. 2020] ; People v. Bumpars , 178 A.D.3d 1379, 1379-1380, 116 N.Y.S.3d 838 [4th Dept. 2019], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 749, 165 N.E.3d 675 [2021] ).
In both appeals, defendant contends that his guilty plea was the result of undue coercion by County Court. That contention is unpreserved inasmuch as defendant failed to move to withdraw his plea or vacate the judgment of conviction (see People v. Lopez , 189 A.D.3d 2152, 2152, 134 N.Y.S.3d 898 [4th Dept. 2020] ; People v. Ingram , 188 A.D.3d 1650, 1651, 132 N.Y.S.3d 353 [4th Dept. 2020] ; People v. Bellamy , 170 A.D.3d 1652, 1653, 94 N.Y.S.3d 909 [4th Dept. 2019] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant also contends that he received ineffective assistance of counsel, which concerns matters outside the record. Defendant brought a CPL article 440 motion to address that contention, which the court denied. Because defendant did not obtain permission to appeal that order, his contention is not properly before us (see CPL 450.15 [1] ; see generally People v. Dewitt , 52 A.D.3d 1184, 1185, 861 N.Y.S.2d 870 [4th Dept. 2008], lv denied 11 N.Y.3d 787, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ).