People v Wilson

2015 NY Slip Op 02026 [126 AD3d 1143]

March 12, 2015

Appellate Division, Third Department

As corrected through Wednesday, April 29, 2015

[*1]

The People of the State of New York, Respondent, vTerell R. Wilson, Appellant.

John R. Trice, Elmira, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), forrespondent.

McCarthy, J. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered July 19, 2013, convicting defendant upon his pleas of guilty of thecrimes of attempted assault in the second degree and attempted criminal possession of acontrolled substance in the third degree.

Defendant pleaded guilty to a superior court information charging him withattempted assault in the second degree. Pursuant to the plea agreement, defendant was tobe sentenced, as a second felony offender, to a prison term of 11/2 to 3years. County Court advised defendant that if he failed to appear for sentencing, it wouldnot be bound by the plea agreement and could impose a prison sentence of 2 to 4 years.Following the plea, defendant failed to appear for sentencing and County Court issued abench warrant. Defendant was subsequently arrested and charged with committingvarious crimes while awaiting sentencing on his attempted assault conviction. He agreedto plead guilty to a superior court information charging him with attempted criminalpossession of a controlled substance in the third degree in full satisfaction of the newcharges. Defendant was sentenced, as a second felony offender, to a prison term of 2 to 4years for the attempted assault conviction and four years for the attempted criminalpossession of a controlled substance conviction, to be followed by three years ofpostrelease supervision, with the sentences to run concurrently. Defendant nowappeals.

We affirm. Defendant's contention that he did not receive the effective assistance ofcounsel is unpreserved for our review inasmuch as the record fails to indicate thatdefendant [*2]made an appropriate postallocution motion(see People v Moses, 110AD3d 1118, 1118 [2013]; People v Stroman 107 AD3d 1023, 1025 [2013], lvdenied 21 NY3d 1046 [2013]). To the extent that his claims address matters outsideof the record, they are more properly the subject of a CPL article 440 motion (see People v Sylvan, 107AD3d 1044, 1045-1046 [2013], lv denied 22 NY3d 1141 [2014]; Peoplev Stroman, 107 AD3d at 1025).

Peters, P.J., Lahtinen and Lynch, JJ., concur. Ordered that the judgment isaffirmed.