| People v Rucker |
| 2015 NY Slip Op 08463 [133 AD3d 1035] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nickles Rucker, Appellant. |
John P.M. Wappett, Public Defender, Lake George, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered January 2, 2013, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale ofa controlled substance in the third degree and waived his right to appeal. Defendantthereafter was sentenced as a second felony offender, in accordance with the pleaagreement, to a prison term of eight years followed by three years of postreleasesupervision, to be served concurrently with a sentence that had been imposed uponsimilar charges in Washington County. Defendant now appeals.
Defendant claims that defense counsel was ineffective because counsel failed toeither request that defendant be sentenced nunc pro tunc to the date that the WashingtonCounty sentence was imposed or otherwise ensure that the conditional release dates ofthe concurrent sentences would be the same. Even assuming this issue impacts thevoluntariness of defendant's plea and, hence, survives the unchallenged waiver of theright to appeal, this issue is unpreserved for our review in the absence of an appropriatepostallocution motion (seePeople v Brown, 128 AD3d 1273, 1274 [2015]). To the extent that defendant'scontention amounts to a misunderstanding on his part at the time of sentencing that theconditional release dates for both sentences would be the same, this issue involvesmatters outside the record and, as such, is more properly addressed by motion pursuant toCPL article 440 (see People v Seminara, 53 AD2d 678, 678 [1976]).
Lahtinen, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.