| People v Burwell |
| 2008 NY Slip Op 08547 [56 AD3d 304] |
| November 13, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Clarence Burwell, Appellant. |
—[*1] Clarence Burwell, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered July 13, 2005,convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, andsentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimouslyaffirmed.
The court properly denied defendant's motion to suppress identification testimony. Theidentifying witness led the police into a basement in search of an intruder, and the police arresteddefendant in the witness's presence. Even assuming that the witness's viewing of defendant incustody moments later could be considered a showup, this prompt, on-the-scene procedure wasentirely permissible (see e.g. People v Gatling, 38 AD3d 239 [2007], lv denied 9 NY3d865 [2007]; People v Boutte, 304 AD2d 307 [2003], lv denied 100 NY2d 579[2003]).
After sufficient inquiry, the court properly denied defendant's motion to withdraw his guiltyplea (see People v Frederick, 45 NY2d 520 [1978]). The record establishes thevoluntariness of the plea. Defendant's disappointment in his attorney's inability to negotiate amore favorable disposition was not a basis for withdrawing the plea; moreover, we note thatdefendant received the most lenient sentence available for one in his situation (see PenalLaw § 70.08 [3] [c]).
Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appealbecause they primarily involve matters outside the record (see People v Rivera, 71 NY2d705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to theextent it permits review, we find that defendant received effective assistance under the state andfederal [*2]standards (see People v Benevento, 91 NY2d708, 713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland vWashington, 466 US 668 [1984]). Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli andBuckley, JJ.