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PEOPLE v. FELIZ (2008)

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

The PEOPLE of the State of New York, Respondent, v. Orelvis FELIZ, Appellant.

Decided: May 22, 2008

Before:  CARDONA, P.J., MERCURE, ROSE, MALONE JR. and KAVANAGH, JJ. Robert P. Wylie, Plattsburgh, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan R. Rider-Ulacco of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered July 30, 2007, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

While an inmate at Elmira Correctional Facility in Chemung County, defendant was found to be in possession of a sharpened plexiglass shank and subsequently was indicted on one count of promoting prison contraband in the first degree.   Following various adjournments, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree.   In accordance with the plea agreement, defendant thereafter was sentenced as a second felony offender to a prison term of 1 1/212 to 3 years-said sentence to run consecutively to the sentence defendant then was serving.   Defendant now appeals, contending that he was denied the effective assistance of counsel.

 We affirm.   Although the crux of defendant's ineffective assistance of counsel claim is unclear, to the extent that defendant suggests that it impacts upon the voluntariness of his plea, defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders this issue unpreserved for our review (see People v. McKeney, 45 A.D.3d 974, 975, 844 N.Y.S.2d 516 [2007];  People v. Bonelli, 41 A.D.3d 972, 973, 837 N.Y.S.2d 434 [2007], lv. denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007] ). Similarly, to the degree that defendant's brief may be read as contending that trial counsel failed to adequately investigate the circumstances of his case, such claim is more appropriately pursued via a CPL article 440 motion, particularly where, as here, the proof necessarily involves facts outside the record (see People v. McKeney, 45 A.D.3d at 975, 844 N.Y.S.2d 516;  People v. Bonelli, 41 A.D.3d at 973, 837 N.Y.S.2d 434;  People v. Douglas, 38 A.D.3d 1063, 1064, 831 N.Y.S.2d 585 [2007], lv. denied 9 N.Y.3d 843, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007] ).   Finally, with regard to trial counsel's alleged failure to secure an interpreter for defendant's various appearances before County Court, we need note only that defendant's now professed difficulties understanding the English language are belied by a review of the transcripts at issue-most notably, defendant's plea allocution (see People v. Tofaj, 14 A.D.3d 734, 786 N.Y.S.2d 846 [2005];  People v. Pagan, 284 A.D.2d 651, 652, 726 N.Y.S.2d 302 [2001], lv. denied 96 N.Y.2d 922, 732 N.Y.S.2d 639, 758 N.E.2d 665 [2001] ).   Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.



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