People v Steven B.

2011 NY Slip Op 01295

Decided on February 15, 2011

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 15, 2011
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
ROBERT J. MILLER, JJ.
2009-04062






Carol Kahn, New York, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y.
(Kirsten A. Rappleyea of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered March 26, 2009, convicting him of attempted criminal possession of marijuana in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claims that he was deprived of effective assistance of counsel and that he is entitled to specific performance of an off-the-record agreement rest on matter dehors the record and, thus, may not be reviewed on direct appeal (see People v Vincent, AD3d, 2011 NY Slip Op 00245, *2 [2d Dept 2011]); People v Sumahit, 72 AD3d 991; People v Melendez-Smith, 66 AD3d 1042, 1042-1043). To the extent that the defendant's claim that his plea of guilty was not intelligently entered rests on matter dehors the record, it may not be reviewed on direct appeal (see People v Griffith, 78 AD3d 1194). To the extent that this claim is based on matter appearing on the record, it is not preserved for appellate review inasmuch as the defendant failed to move to withdraw his plea (see People v Bunn, 79 AD3d 1143; People v Nowell, 46 AD3d 707) and, in any event, is without merit. The defendant's contention regarding his adjudication as a predicate felony offender is not preserved for appellate review and is, in any event, without merit (see CPL 470.05[2]; People v Sampson, 30 AD3d 623, 623-624).
MASTRO, J.P., BALKIN, LEVENTHAL and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court