Opinion
137 KA 20-01526
03-17-2023
The PEOPLE of the State of New York, Respondent, v. Gerald L. SMITH, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25 [2] ), defendant contends that his plea was involuntary. As a preliminary matter, we note that, even assuming, arguendo, that defendant's waiver of the right to appeal is valid, defendant's contention survives that waiver (see People v. Tchiyuka , 169 A.D.3d 1398, 1398, 92 N.Y.S.3d 780 [4th Dept. 2019] ). Nonetheless, defendant's contention relies on matters outside the record and thus is not properly before us on his direct appeal and must be pursued by way of a motion pursuant to CPL article 440 (see generally People v. Jackson , 153 A.D.3d 1605, 1606, 60 N.Y.S.3d 893 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ).