| People v Weir |
| 2012 NY Slip Op 04586 [96 AD3d 1486] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Traci L. Weir,Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedApril 25, 2005. The judgment convicted defendant, upon her plea of guilty, of manslaughter inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a guilty plea of manslaughterin the first degree (Penal Law § 125.20 [1]), defendant contends that she was deniedeffective assistance of counsel based, inter alia, upon defense counsel's failure to request a mentalhealth examination of defendant or an independent autopsy of the victim. That contention doesnot survive the guilty plea inasmuch as defendant fails even to allege, nor has she shown, that"the plea bargaining process was infected by [the] allegedly ineffective assistance or thatdefendant entered the plea because of [her] attorney's allegedly poor performance" (People v Robinson, 39 AD3d1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internal quotation marksomitted]; see People v Socrates, 307 AD2d 546 [2003]). In any event, defendant'scontention lacks merit. The record establishes that defense counsel made appropriate pretrialmotions, sought relevant discovery and preserved defendant's right to raise defenses by filing anotice of intent to offer psychiatric evidence, and defendant failed to demonstrate that defensecounsel lacked a legitimate reason for not pursuing such defenses (see People v Wheeler,249 AD2d 774, 775 [1998]). Defendant also failed to demonstrate that there was any basis fordefense counsel to request an independent autopsy (see generally id.; People vRadtke, 152 Misc 2d 744 [1991]). Finally, to the extent that defendant relies upon mattersoutside the record in support of her contention, those matters must be raised by way of a motionpursuant to CPL article 440 (see Peoplev Lopez, 28 AD3d 234, 235 [2006], lv denied 7 NY3d 758 [2006]).Present—Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.