| People v Paugam |
| 2008 NY Slip Op 10646 [57 AD3d 1012] |
| December 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oswaldo Paugam, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Jason R.Richards of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino,J.), rendered July 25, 2006, convicting him of burglary in the second degree, burglary in the thirddegree, and criminal possession of stolen property in the fifth degree, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
At sentencing, the defendant asked the court to consider directing that the sentence imposedin the instant case run concurrently with his undischarged sentence imposed on a priorconviction. The defendant noted that the Justice who accepted his plea of guilty in this case hadstated that, although he would not promise to impose such concurrent sentences, he would notforeclose the possibility of doing so. The sentencing court advised the defendant that, despite theimpression he was given by the court at the plea proceeding, his status as a second violent felonyoffender precluded concurrent sentencing; his present sentence was required by law to runconsecutive to his prior undischarged sentence (see Penal Law § 70.25 [2-a]). Thesentencing court then asked the defendant whether he nonetheless wished to go forward with thesentencing proceeding, and the defendant and his attorney both responded in the affirmative.Since the defendant chose to proceed with the sentencing instead of moving to withdraw his pleaof guilty, he waived his current contention that he should be permitted to withdraw his plea(see People v Watson, 287 AD2d 889 [2001]).[*2]
The defendant's contention that he was denied theeffective assistance of counsel because his attorney failed to move to withdraw his plea of guiltyis without merit (see Strickland v Washington, 466 US 668 [1984]; People v Baldi,54 NY2d 137 [1981]). There is nothing in the record to indicate that, under thecircumstances of this case, the decision to proceed under the existing plea was disadvantageousto the defendant.
To the extent that the defendant asserts that his attorney was ineffective in that he failed toproperly advise the defendant regarding the option of withdrawing his plea, this contention isbased on matter outside the record, and therefore cannot be reviewed on direct appeal from thejudgment of conviction (see People v Olson, 35 AD3d 890 [2006]; People v Spotards,23 AD3d 586 [2005]; People v Krebs, 11 AD3d 713 [2004]). Prudenti, P.J., Dillon,Eng and Leventhal, JJ., concur.