PEOPLE v. NELSON (2022)

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (§ 220.16 [12]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). The two pleas were entered in a single plea proceeding.

Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Lopez, 196 A.D.3d 1157, 1157, 147 N.Y.S.3d 918 [4th Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 426, 175 N.E.3d 451 [2021]), we reject defendant's contention in appeal No. 2 that Supreme Court abused its discretion by directing that the sentence imposed in that appeal run consecutively to the sentence imposed in appeal No. 1 (see People v. Washington, 124 A.D.3d 1388, 1388, 997 N.Y.S.2d 666 [4th Dept. 2015], lv denied 25 N.Y.3d 954, 7 N.Y.S.3d 283, 30 N.E.3d 174 [2015]; see also People v. Graham, 171 A.D.3d 1559, 1561, 99 N.Y.S.3d 182 [4th Dept. 2019], lv denied 33 N.Y.3d 1069, 105 N.Y.S.3d 47, 129 N.E.3d 367 [2019]).

Defendant further contends in both appeals that he was denied effective assistance of counsel. To the extent that defendant contends that his attorney was ineffective for failing to address off-the-record discussions regarding defense strategy or the content of off-the-record plea negotiations, those issues are based upon matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v. Tyes, 160 A.D.3d 1447, 1448, 72 N.Y.S.3d 902 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018]). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it lacks merit inasmuch as he “received ․ advantageous plea[s], and ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ ” (People v. Shaw, 133 A.D.3d 1312, 1313, 19 N.Y.S.3d 449 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016], quoting People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995]).

Finally, contrary to defendant's contention in both appeals, we conclude that the sentences are not unduly harsh or severe, and we decline to exercise our power to reduce them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).