Opinion
KA 03-00181
June 13, 2003.
Appeal from a judgment of Cayuga County Court (Corning, J.), entered July 18, 2002, convicting defendant upon his plea of guilty of sexual abuse in the first degree (two counts).
DOUGLAS P. BATES, AUBURN, FOR DEFENDANT-APPELLANT.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, 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 two counts of sexual abuse in the first degree (Penal Law 130.65) and sentencing him to consecutive terms of five years' imprisonment. Even assuming, arguendo, that the contention of defendant that he was denied effective assistance of counsel because different attorneys represented him at the time of the plea and at sentencing survives his plea of guilty ( see People v Burke, 256 A.D.2d 1244, lv denied 93 N.Y.2d 851), we conclude that his contention is without merit ( see People v. Camacho, 16 N.Y.2d 1064, 1065; People v. Torrance, 298 A.D.2d 857, 858, lv denied 99 N.Y.2d 540; cf. People v. Gonzalez, 43 A.D.2d 914, 915). The further contention of defendant that he was denied effective assistance of counsel because defense counsel failed to meet with him before the time of the plea is based upon matters outside the record. Thus, to the extent that defendant's contention survives the plea ( see Burke, 256 A.D.2d 1244), it is properly addressed in a motion pursuant to CPL 440.10 ( see People v. Pike, 254 A.D.2d 727, 729; People v. Speed, 226 A.D.2d 1090, 1091, lv denied 88 N.Y.2d 969). The sentence is neither unduly harsh nor severe.