| People v Fully |
| 2013 NY Slip Op 05917 [109 AD3d 936] |
| September 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Amos Fully, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Michael Shollar of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Collini, J.), rendered July 1, 2010, convicting him of burglary in the first degree, uponhis plea of guilty, and imposing sentence. By decision and order of this Court datedDecember 27, 2011, the matter was remitted to the Supreme Court, Richmond County, tohear and report on the defendant's motion to withdraw his plea of guilty, and the appealwas held in abeyance in the interim (see People v Fully, 90 AD3d 1071 [2011]). The SupremeCourt has now submitted its report. Justice Rivera has been substituted for former JusticeBelen (see 22 NYCRR 670.1 [c]).
Ordered that the judgment is affirmed.
By decision and order of this Court dated December 27, 2011, this matter wasremitted to the Supreme Court, Richmond County, to hear and report on the defendant'smotion to withdraw his plea of guilty, and the appeal was held in abeyance in the interim(see People v Fully, 90AD3d 1071 [2011]). At the hearing subsequently conducted by the Supreme Court,the attorney who represented the defendant at the plea proceeding testified that thedefendant was fully apprised of the consequences of entering a plea of guilty. Thedefendant declined to testify at the hearing, expressly stating to the Supreme Court thatno one had coerced him into waiving his right to testify.
In a posthearing memorandum submitted to the Supreme Court, the defendantalleged for the first time that the Supreme Court had informed him, in an off-the-recordstatement made during a recess at the hearing, that he would be subject to a perjurycharge if he testified in support of his motion to withdraw his plea of guilty. Thedefendant claims that the Supreme Court's off-the-record statement deprived him of areasonable opportunity to present his contentions. Since the defendant's claim rests onmatter dehors the record, it is not properly before this Court (see People v McLean, 15NY3d 117, 121 [2010]; People v Steven B., 81 AD3d 843, 843 [2011]).
Accordingly, the Supreme Court properly denied the defendant's motion to withdrawhis plea of guilty. Rivera, J.P., Skelos, Leventhal and Roman, JJ., concur.