| People v Burroughs |
| 2010 NY Slip Op 02247 [71 AD3d 1447] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LorcenBurroughs, Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Brooks T. Baker of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), renderedSeptember 15, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]), defendant contends that he was denied his right to due process and that his plea of guiltyshould be vacated because County Court failed to advise him at the time of the plea that hewould be subject to a period of postrelease supervision. We reject that contention. Althoughdefendant is correct that the court did not advise him of the period of postrelease supervision atthe time of the plea, the record nevertheless establishes that defendant was advised of that factapproximately one month before sentencing, and that sentencing was adjourned twice in order toafford him the opportunity to move to withdraw his plea. The record further establishes thatdefendant in fact moved to withdraw his plea, but on a different ground. Thus, he had notice thatpostrelease supervision would be imposed and an opportunity to be heard concerning that part ofthe sentence, and it therefore cannot be said under the circumstances of this case that defendantwas denied his right to due process (see People v Madison, 71 AD3d 1422 [2010]; see generally People v Hill, 9 NY3d189, 193 [2007]).
Insofar as the further contention of defendant that he was denied effective assistance ofcounsel involves matters outside the record on appeal, it must be raised by way of a motionpursuant to CPL article 440 (see Peoplev McKnight, 55 AD3d 1315, 1317 [2008], lv denied 11 NY3d 927 [2009]).Insofar as defendant's contention involves matters in the record before us and survives the plea(see People v Adams, 66 AD3d1355 [2009]), we conclude that it is lacking in merit (see generally People v Ford,86 NY2d 397, 404 [1995]).
We reject the further contention of defendant that the court abused its discretion in denyinghis motion to withdraw his plea without holding a hearing inasmuch as this is not one of those"rare instance[s]" in which the defendant is entitled to an evidentiary hearing (People vTinsley, 35 NY2d 926, 927 [1974]). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Fahey, Carni, Lindley and Sconiers, JJ.