| People v Lopez |
| 2010 NY Slip Op 04889 [74 AD3d 1498] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarcusLopez, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered December 11, 2008, convicting defendant upon his plea of guilty of the crime ofpossessing a sexual performance by a child.
After defendant was found to be in possession of numerous photographic images of boyswith their genitals exposed, he was indicted on 12 counts of possessing a sexual performance bya child. In full satisfaction thereof, defendant pleaded guilty to one count of possessing a sexualperformance by a child and was sentenced to an agreed-upon 10-year period of probation.Defendant now appeals contending, among other things, that his plea was factually insufficient,the photographs found in his possession did not involve a lewd display and he was denied theeffective assistance of counsel. We affirm.
Initially, defendant's challenge to the factual sufficiency and the voluntariness of his plea isunpreserved for our review due to defendant's failure to move to withdraw his plea or vacate thejudgment of conviction (see People vBethel, 69 AD3d 1126, 1127 [2010]; People v Scitz, 67 AD3d 1251, 1251 [2009]; People v Harris, 51 AD3d 1335,1336 [2008], lv denied 11 NY3d 789 [2008]). A review of the plea colloquy reveals thatdefendant did not make any statements that were inconsistent with his guilt, such as to negate anessential element of the [*2]crime. Nor did defendant make anystatements that called into question the voluntariness of his plea. Accordingly, the narrowexception to the preservation requirement is inapplicable (see People v Lopez, 71 NY2d662, 666 [1988]; People vStoddard, 67 AD3d 1055, 1055-1056 [2009], lv denied 14 NY3d 806 [2010]; People v Buskey, 62 AD3d 1164,1165 [2009]; People v Terry, 55AD3d 1149, 1150 [2008], lv denied 11 NY3d 931 [2009]; People v Goodell, 13 AD3d 816,817 [2004], lv denied 4 NY3d 831 [2005]).
Likewise, defendant's ineffective assistance of counsel claim is unpreserved for our reviewin light of his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Anderson, 63 AD3d1191, 1193 [2009], lv denied 13 NY3d 794 [2009]; People v Cintron, 62 AD3d 1157,1158 [2009], lv denied 13 NY3d 742 [2009]). Further, to the extent that defendant'sclaim of ineffective assistance of counsel involves matters outside the record, such issues aremore properly addressed in the context of a CPL article 440 motion (see People v Fiske, 68 AD3d1149, 1150 [2009], lv denied 14 NY3d 800 [2010]). In any event, the record reflectsthat defense counsel negotiated a favorable plea agreement on behalf of defendant, who statedthat he had discussed the terms thereof with counsel and was satisfied with counsel's services.Accordingly, were we to reach this issue, we would conclude that defendant was affordedmeaningful representation (see People v Scitz, 67 AD3d at 1252; People v Dobrouch, 59 AD3d 781[2009], lv denied 12 NY3d 853 [2009]).
Defendant's remaining contentions, including his assertion that County Court abused itsdiscretion in denying his request to continue coaching teenage boys in paint ball, have beenexamined and found to be lacking in merit.
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.