| People v Gardner |
| 2012 NY Slip Op 08907 [101 AD3d 1634] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Walter A.Gardner III, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Theresa L. Prezioso of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedDecember 10, 2010. The judgment convicted defendant, upon his plea of guilty, of assault in thesecond degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofassault in the second degree (Penal Law § 120.05 [3]) and resisting arrest (§ 205.30).Defendant first contends that his plea was not knowingly, intelligently and voluntarily enteredbecause he never admitted during the plea colloquy that he intended to prevent a police officerfrom performing a lawful duty or that he in fact caused injury to an officer. "That contention isactually a challenge to the factual sufficiency of the plea allocution, which is encompassed bydefendant's valid waiver of the right to appeal" (People v Thomas, 72 AD3d 1483, 1483 [2010]). In any event,defendant also failed to preserve that contention for our review inasmuch as he failed to move towithdraw the plea or to vacate the judgment of conviction (see People v Lewandowski, 82 AD3d 1602, 1602 [2011])."Although defendant's initial factual allocution may have negated an essential element of thecrime, this case does not fall within the exception to the preservation rule because the courtconducted the requisite further inquiry and defendant did not thereafter raise any furtherobjections" (People v Jennings, 8AD3d 1067, 1068 [2004], lv denied 3 NY3d 676 [2004]).
We reject defendant's further contention that he was denied effective assistance of counsel.Assuming, arguendo, that defendant's contention otherwise survives the guilty plea and hiswaiver of the right to appeal, we conclude that he received meaningful representation (seegenerally People v Ford, 86 NY2d 397, 404 [1995]). To the extent that defendant contendsthat defense counsel's alleged failure to communicate with him constituted ineffective assistance,it is based upon matters outside the record and thus may only be raised by way of a motionpursuant to CPL article 440 (see Peoplev Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).Present—Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.