| People v Carlisle |
| 2008 NY Slip Op 03724 [50 AD3d 1451] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Steven T.Carlisle, Appellant. (Appeal No. 1.) |
—[*1] Steven T. Carlisle, defendant-appellant pro se. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedNovember 8, 2006. The judgment convicted defendant, upon his plea of guilty, of sexual abuse inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment entered upon his plea of guilty of sexualabuse in the first degree (Penal Law § 130.65 [3]). Defendant contends in his main briefthat his plea was coerced by comments made by County Court and that the court therefore abusedits discretion in denying his motion to withdraw his guilty plea. Defendant failed to raise thatcontention in support of his motion to withdraw his guilty plea and failed to move to vacate thejudgment of conviction on that ground. Thus, he failed to preserve that contention for our review(see People v Aguayo, 37 AD3d1081 [2007], lv denied 8 NY3d 981 [2007]). This case does not fall within thenarrow exception to the preservation requirement set forth in People v Lopez (71 NY2d662, 666 [1988]).
The remaining contentions of defendant are raised in his pro se supplemental brief.Defendant's contention concerning alleged prosecutorial misconduct concerns matters outside therecord on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Hoeft, 42 AD3d 968,969-970 [2007], lv denied 9 NY3d 962 [2007]; see generally People v Williams, 48 AD3d 1108, 1109 [2008]). Tothe extent that the further contention of defendant that he was denied effective assistance ofcounsel from both of his defense attorneys survives his plea of guilty (see People vBurke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]), we conclude that itis lacking in merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). Thecontention of defendant that his plea was not knowing, voluntary and intelligent because he didnot know the terms of his probation at the time of the plea is unpreserved for our reviewinasmuch as defendant did not move to withdraw the plea on that ground, nor did he move tovacate the judgment of conviction on that ground (see Aguayo, 37 AD3d 1081 [2007]).Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.