| People v Dixon |
| 2017 NY Slip Op 01093 [147 AD3d 1518] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Vernon J.Dixon, Appellant. |
Charles A. Marangola, Moravia, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered June12, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon in the third degree (two counts), menacing in the second degree and attempted menacinga police officer or peace officer.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon an Alfordplea of, inter alia, attempted menacing a police officer or peace officer (Penal Law§§ 110.00, 120.18), and two counts of criminal possession of a weapon in thethird degree (§ 265.02 [1]). Defendant contends that County Court erred inaccepting his Alford plea because the record does not contain the requisite strongevidence of guilt or establish that the plea was the product of a voluntary and rational choice (see generally People v Couser, 28NY3d 368, 379 [2016]). Defendant failed to move to withdraw his plea or to vacate thejudgment of conviction and thus failed to preserve that contention for our review (see People v Elliott, 107 AD3d1466, 1466 [2013], lv denied 22 NY3d 996 [2013]; People v Cruz, 89 AD3d 1464,1465 [2011], lv denied 18 NY3d 993 [2012]), and we decline to exercise our power toreview it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; People v Zimblis, 23 AD3d 1086,1087 [2005], lv denied 6 NY3d 783 [2006]).
Defendant further contends that the counts of the indictment charging criminal possession ofa weapon in the third degree are defective because they expressly allege that he was previouslyconvicted of a crime, in violation of CPL 200.60 (1). That defect, however, is not jurisdictionalin nature (see generally People vDickinson, 78 AD3d 1237, 1239 [2010], revd on other grounds 18 NY3d 835[2011]; People v Smith, 77 AD3d990, 990-991 [2010], lv denied 16 NY3d 746 [2011]), and thus defendant'scontention was forfeited by his plea (see People v Cox, 275 AD2d 924, 925 [2000], lvdenied 95 NY2d 962 [2000]).
To the extent that defendant's contention that he was denied effective assistance of counselsurvives his plea (see generally People vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007]), wereject that contention. Defendant has not established that defense counsel was ineffective infailing to move to dismiss the counts charging criminal possession of a weapon in the thirddegree (see generally People vCampbell, 17 AD3d 925, 926-927 [2005], lv denied 5 NY3d 760 [2005]), andwe conclude that "counsel engaged in an active defense prior to [the negotiation of] theAlford plea, which was reasonable in its terms" (People v Preister, 39 AD3d 1225, 1226 [2007]). Even assuming,arguendo, that defendant's entry of his plea while represented by his second attorney did notforfeit his right to contend that he was denied effective assistance by his first attorney's failure toadvise him of his right to testify before the grand jury (cf. People v Ortiz, 104 AD3d 1202, 1203 [2013]), we conclude thathis contention is based on matters outside the record and must be raised by way of a motionpursuant to CPL article 440 (see Peoplev Gaston, 100 AD3d 1463, 1466 [2012]; People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12NY3d 925 [2009]). The sentence is not unduly harsh or severe. Present—Whalen, P.J.,Centra, DeJoseph, NeMoyer and Troutman, JJ.