| People v Peterson |
| 2008 NY Slip Op 08919 [56 AD3d 1230] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Adam M.Peterson, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (James W. McCarthy, J.), renderedMay 30, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted rape inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea ofattempted rape in the first degree (Penal Law §§ 110.00, 130.35 [3]). Although thecontention of defendant that he was denied effective assistance of counsel "survives his guiltyplea and his waiver of the right to appeal inasmuch as he contends that his plea was infected bythe alleged ineffective assistance" (People v Jennings, 8 AD3d 1067, 1068 [2004], lv denied 3NY3d 676 [2004]), that contention involves matters outside the record on appeal and thus mustbe raised by way of a motion pursuant to CPL 440.10 (see id.; see also People v Nichols, 21 AD3d1273, 1274 [2005], lv denied 6 NY3d 757 [2005]; People v Prince, 5 AD3d 1098,1098-1999 [2004], lv denied 2 NY3d 804 [2004]). Present—Hurlbutt, J.P.,Martoche, Smith, Fahey and Peradotto, JJ.