Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JULIE A. FULLER, DEFENDANT–APPELLANT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ), defendant contends that her plea was not knowingly or voluntarily entered because she was under the influence of alcohol at the time of the plea. Although that contention survives defendant's valid waiver of the right to appeal (see generally People v. Seaberg, 74 N.Y.2d 1, 10; People v. Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d 746), and is preserved for our review by defendant's motion to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665), we conclude that it is without merit. Defendant told County Court during the plea colloquy that she had not consumed any drugs or alcohol in the previous 24 hours, and there is nothing in the record to suggest otherwise (see People v. Forshey, 298 A.D.2d 962, 963, lv denied 99 N.Y.2d 558, reconsideration denied 100 N.Y.2d 561; see also People v. Galagan, 35 AD3d 973, 974; People v. Ackerman, 199 A.D.2d 576, 577, lv denied 83 N.Y.2d 848). Defendant further contends that she received ineffective assistance of counsel because she informed defense counsel that she was intoxicated and defense counsel failed to advise the court of that fact. That contention, insofar as it survives her guilty plea, is based on matters outside the record and thus is not reviewable on direct appeal (see People v. Davis, 119 AD3d 1383, 1384, lv denied 24 NY3d 960; People v. Bethune, 21 AD3d 1316, 1316, lv denied 6 NY3d 752).
Finally, inasmuch as defendant failed to obtain leave to appeal from the order denying her CPL 440.10 motion, her contentions with respect to the denial of that motion are not properly before us (see CPL 450.15[1]; 460.15; People v. Acosta, 19 AD3d 1041, 1041, lv denied 5 NY3d 803; People v. Brown, 277 A.D.2d 987, 987, lv. denied 96 N.Y.2d 781).
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: KA 12–00509
Decided: January 02, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)