| People v Barnes |
| 2008 NY Slip Op 08822 [56 AD3d 1171] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donnell A.Barnes, Appellant. |
—[*1] Donnell A. Barnes, defendant-appellant pro se. Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered March 12, 2007. The judgment convicted defendant, upon his plea of guilty, of robberyin the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofrobbery in the second degree (Penal Law § 160.10 [2] [b]). Contrary to defendant'scontention, the sentence is not unduly harsh or severe. We note, however, that the certificate ofconviction incorrectly reflects that defendant was sentenced to a determinate term ofincarceration of five years, and it must therefore be amended to reflect that he was sentenced to adeterminate term of incarceration of six years (see generally People v Saxton, 32 AD3d 1286 [2006]). We haveexamined the contention of defendant in his pro se supplemental brief that he was deniedeffective assistance of counsel based on defense counsel's failure "to secure" his right to testifybefore the grand jury and his contention with respect to the alleged invalidity of his waiver of theright to appeal and his plea and conclude that neither contention requires reversal. To the extentthat defendant otherwise contends that he was denied effective assistance of counsel, thoseclaims of ineffective assistance involve matters outside the record on appeal and thus areproperly raised by way of a motion pursuant to CPL article 440 (see generally People v Hall, 50 AD3d1467, 1469 [2008]). Present—Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.