| People v Masso-Diaz |
| 2013 NY Slip Op 04368 [107 AD3d 1148] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMiguel Masso-Diaz, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered January 19, 2011, convicting defendant upon his plea of guilty ofthe crime of assault in the second degree.
In November 2010, defendant pleaded guilty to assault in the second degree insatisfaction of a three-count indictment, a pending violation of probation petition, anunrelated felony and other charges. In accordance with the plea agreement, he wasthereafter sentenced as a second felony offender to seven years in prison, to be followedby five years of postrelease supervision. This appeal ensued.
We affirm. Defendant's sole argument on appeal is that he received ineffectiveassistance of counsel because—during sentencing—defense counselmisstated the law as to defendant's legal options had he not entered a guilty plea to thesubject crime. Defendant does not explain how a statement made at sentencing wouldhave affected his earlier guilty plea. Claims relying on proof outside the record areappropriately raised in a postjudgment motion, not on direct appeal (see People v Rivera, 78 AD3d1423, 1424 [2010]). Because the record does not indicate that defendant moved towithdraw his plea or vacate the judgment of conviction, the issue of ineffectiveassistance of counsel has not been preserved for our review (see id.; People v Belle, 74 AD3d1477, 1480 [2010], lv denied 15 NY3d 918 [2010]).[*2]
Lahtinen, J.P., Garry and Egan Jr., JJ., concur.Ordered that the judgment is affirmed.