| People v Baker |
| 2008 NY Slip Op 10403 [57 AD3d 1500] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Derek Baker,Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Patricia L. Dziuba of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedSeptember 10, 2007. The judgment convicted defendant, upon his plea of guilty, of assault in the firstdegree.
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 of assaultin the first degree (Penal Law § 120.10 [1]). Defendant failed to preserve for our review hiscontention that County Court erred in ordering restitution without conducting a hearing, and we declineto exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Perry, 50 AD3d 1556[2008], lv denied 10 NY3d 963 [2008]). To the extent that the further contention of defendantthat he was denied effective assistance of counsel survives the plea (see People v Santos, 37 AD3d 1141[2007], lv denied 8 NY3d 950 [2007]), it concerns matters outside the record and thus mustbe raised by way of a motion pursuant to CPL article 440 (see People v Leno, 21 AD3d 1399 [2005], lv denied 5 NY3d883 [2005]; People v Michalski, 15AD3d 918, 919 [2005], lv denied 5 NY3d 854 [2005], 6 NY3d 756 [2005], certdenied 547 US 1077 [2006], reh denied 547 US 1176 [2006]).Present—Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.