PEOPLE v. ORTEGA (2004)

Defendant appeals from a judgment convicting him following a jury trial of three counts of burglary in the first degree (Penal Law § 140.30[2], [3], [4] ), one count of grand larceny in the third degree (§ 155.35), two counts of assault in the second degree (§ 120.05[6] ), and one count each of criminal possession of a weapon in the second degree (§ 265.03[2] ) and criminal possession of a weapon in the third degree (§ 265.02[4] ).   The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   At trial the codefendants testified regarding defendant's involvement in the crimes.   Police officers testified that they pursued defendant from the scene, found property belonging to the victims on his person, and found a gun matching the description given by the victims along the path of the pursuit.   The contention of defendant that he was denied effective assistance of counsel concerns matters outside the record and thus must be raised by way of a CPL article 440 motion (see People v. Jackson, 4 A.D.3d 773, 774, 771 N.Y.S.2d 431, lv. denied 2 N.Y.3d 801, 781 N.Y.S.2d 300, 814 N.E.2d 472).   The sentence is not unduly harsh or severe.   Defendant's remaining contention is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see 470.15[6] [a] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: