PEOPLE v. BURWELL (2008)

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered July 13, 2005, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

 The court properly denied defendant's motion to suppress identification testimony.   The identifying witness led the police into a basement in search of an intruder, and the police arrested defendant in the witness's presence.   Even assuming that the witness's viewing of defendant in custody moments later could be considered a showup, this prompt, on-the-scene procedure was entirely permissible (see e.g. People v. Gatling, 38 A.D.3d 239, 831 N.Y.S.2d 157 [2007], lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007];  People v. Boutte, 304 A.D.2d 307, 757 N.Y.S.2d 283 [2003], lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 [2003] ).

 After sufficient inquiry, the court properly denied defendant's motion to withdraw his guilty plea (see People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [1978] ).   The record establishes the voluntariness of the plea.   Defendant's disappointment in his attorney's inability to negotiate a more favorable disposition was not a basis for withdrawing the plea;  moreover, we note that defendant received the most lenient sentence available for one in his situation (see Penal Law § 70.08 [2][c] ).

 Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they primarily involve matters outside the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).   On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).