Opinion
2012-12-13
The PEOPLE of the State of New York, Respondent, v. Carl TAYLOR, Appellant.
Michael B. Cassidy, Albany, for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Michael B. Cassidy, Albany, for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.
MALONE JR., J.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 30, 2010 in Albany County, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.
In satisfaction of a reduced indictment charging him with murder in the second degree and criminal possession of a weapon in the fourth degree, defendant pleaded guilty to manslaughter in the first degree and waived his right to appeal. Alleging ineffective assistance of counsel, defendant indicated that he did not want to go forward with sentencing and, instead, sought appointment of new counsel to conduct an investigation of all matters favorable to his defense. Supreme Court denied the motion, noting that the issue was preserved for appeal. Thereafter, in accordance with the plea agreement, defendant was sentenced as a second felony offender to 20 years in prison followed by five years of postrelease supervision. Defendant now appeals.
We affirm. For preservation purposes, defendant's pro se claim at sentencing that his counsel was ineffective was tantamount to a motion to vacate his plea; therefore, it survives his appeal waiver and is properly preserved for our review ( see People v. Walley, 63 A.D.3d 1284, 1285 n. 1, 881 N.Y.S.2d 203 [2009];cf. People v. Jerome, 98 A.D.3d 1188, 1189, 951 N.Y.S.2d 586 [2012];People v. Moore, 97 A.D.3d 850, 851, 947 N.Y.S.2d 231 [2012] ). Nonetheless, defendant's claim that his counsel did not adequately investigate the circumstances of his case is not supported in this record and is a claim more appropriately pursued by way of a CPL article 440 motion ( see People v. Feliz, 51 A.D.3d 1278, 1279, 858 N.Y.S.2d 472 [2008];see also People v. Shiels, 93 A.D.3d 992, 993, 939 N.Y.S.2d 895 [2012];People v. Carpenter, 93 A.D.3d 950, 952, 939 N.Y.S.2d 658 [2012],lv. denied19 N.Y.3d 863, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012] ).
ORDERED that the judgment is affirmed.