| People v Strickland |
| 2013 NY Slip Op 00641 [103 AD3d 1178] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vLumario L. Strickland, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered February 20, 2009. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea ofguilty of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]). The contention of defendant that he was denied effective assistance ofcounsel based on defense counsel's failure to seek to suppress the handgun seized fromthe building in which he was staying survives his plea of guilty and waiver of the right toappeal "only insofar as he contends that his plea was infected by the allegedly ineffectiveassistance and that he entered the plea because of his attorney's allegedly poorperformance" (People vBethune, 21 AD3d 1316, 1316 [2005], lv denied 6 NY3d 752 [2005];see generally People v Petgen, 55 NY2d 529, 534-535 [1982], reargdenied 57 NY2d 674 [1982]). That contention, however, involves matters outsidethe record on appeal and therefore must be raised by way of a motion pursuant to CPLarticle 440 (see People vNeal, 56 AD3d 1211, 1211 [2008], lv denied 12 NY3d 761 [2009]; People v Jennings, 8 AD3d1067, 1068 [2004], lv denied 3 NY3d 676 [2004]).
Defendant's valid waiver of the right to appeal encompasses his challenge to theseverity of the sentence (seePeople v Lopez, 6 NY3d 248, 255-256 [2006]). Present—Smith, J.P.,Peradotto, Lindley, Sconiers and Valentino, JJ.