THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KEVIN MANUEL DEFENDANT APPELLANT (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEVIN MANUEL, DEFENDANT-APPELLANT.

KA 09-02222

Decided: December 30, 2010

PRESENT: MARTOCHE, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.

RONALD C. VALENTINE, PUBLIC DEFENDER, LYONS (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (DAVID V. SHAW OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). The contention of defendant that County Court failed to apprehend the extent of its discretion in sentencing him is not supported by the record (see People v. Moon, 43 AD3d 1379, lv denied 9 NY3d 1036; People v. Lee, 24 AD3d 1246, lv denied 6 NY3d 850; cf. People v. Schafer, 19 AD3d 1133). To the extent that the further contention of defendant that he was denied effective assistance of counsel survives his plea (see People v. Barnes, 32 AD3d 1250), it “involve[s] matters outside the record on appeal and thus [is] properly raised by way of a motion pursuant to CPL article 440” (People v. Barnes, 56 AD3d 1171, 1171-1172; see People v. Graham, 77 AD3d 1439).

Patricia L. Morgan

Clerk of the Court

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