| People v Atkinson |
| 2013 NY Slip Op 02870 [105 AD3d 1349] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PaulF. Atkinson, Also Known as Paul Francis Atkinson, Also Known as Paul Atkinson,Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered December 20, 2011. The judgment convicted defendant, upon his plea of guilty,of arson in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofarson in the second degree (Penal Law § 150.15), defendant contends that he wasdenied effective assistance of counsel because defense counsel failed to seek suppressionof tangible evidence and his statement to the police and to advise him of certain rightsforfeited as a consequence of his plea. That contention survives his guilty plea onlyinsofar as he asserts that "the plea bargaining process was infected by [the] allegedlyineffective assistance or that defendant entered the plea because of his attorney['s]allegedly poor performance" (People v Robinson, 39 AD3d 1266, 1267 [2007], lvdenied 9 NY3d 869 [2007] [internal quotation marks omitted]; see People v Culver, 94 AD3d1427, 1427-1428 [2012], lv denied 19 NY3d 1025 [2012]; People v Bethune, 21 AD3d1316, 1316 [2005], lv denied 6 NY3d 752 [2005]; see also People v Strickland,103 AD3d 1178 [2013]). Defendant's contention with respect to ineffectiveassistance of counsel, however, concerns matters outside the record and thus must beraised by way of a motion pursuant to CPL article 440 (see Strickland, 103 AD3dat 1178; see also People vWilliams, 48 AD3d 1108, 1109 [2008], lv denied 10 NY3d 872 [2008]).The further contention of defendant that his plea was not knowingly, intelligently orvoluntarily entered is not preserved for our review because defendant failed to move towithdraw the plea or to vacate the judgment of conviction on that ground (see People v Montanez, 89AD3d 1409, 1409 [2011]; People v Connolly, 70 AD3d 1510, 1511 [2010], lvdenied 14 NY3d 886 [2010]). In any event, we conclude that defendant understoodthe nature and consequences of the plea and that it was knowingly, intelligently andvoluntarily entered (see Peoplev White, 85 AD3d 1493, 1494 [2011]; People v Watkins, 77 AD3d 1403, 1403-1404 [2010],lv denied 15 NY3d 956 [2010]). Defendant's contention that he was not creditedfor jail time that he served before entering his plea is not properly raised on direct appealfrom the judgment of conviction and instead the proper procedural vehicle is a CPLRarticle 78 proceeding (see People v Person, 256 AD2d 1232, 1232-1233 [1998],lv denied 93 NY2d 856 [1999]; People v Searor, 163 AD2d 824, 824[1990], lv denied 76 [*2]NY2d 896 [1990]).Finally, under the circumstances here, the sentence is not unduly harsh or severe.Present—Smith, J.P., Peradotto, Carni, Valentino and Martoche, JJ.